

Matter of Prospect Park E. Network v New York State Homes & Community Renewal (2015 NY Slip Op 00832)





Matter of Prospect Park E. Network v New York State Homes & Community Renewal


2015 NY Slip Op 00832


Decided on February 3, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 3, 2015

Friedman, J.P., Andrias, Saxe, Richter, Gische, JJ.


14146N 101695/13

[*1] In re Prospect Park East Network, et al., Petitioners-Appellants,
vNew York State Homes & Community Renewal, et al., Respondents-Respondents, Lettire Construction Services, Inc., Respondent.


Wilmer Cutler Pickering Hale and Dorr LLP, New York (David B. Bassett of counsel), for appellants.
South Brooklyn Legal Services, Brooklyn (Rachel Hannaford of counsel), for Flatbush Development Corporation, Flatbush Tenant Coalition and Leo Crooks, appellants.
Venable LLP, New York (Michael J. Volpe of counsel), for New York State Homes & Community Renewal, Darryl C. Towns and New York State Housing Finance Agency, respondents.
Sive, Paget & Riesel, P.C., New York (David Paget of counsel), for The Hudson Companies Inc., Hudson CBD Flatbush LLC, Hudson PLG LLC, Hudson Company Ventures LLC and Hudson Catamount Flatbush LLC, respondents.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered June 23, 2014, which vacated a temporary restraining order and denied petitioners' motion for a preliminary injunction staying any work on the subject project, and any further public financing for the project, until a further environmental review is conducted, unanimously affirmed, without costs.
In this proceeding brought pursuant to CPLR article 78 seeking to, among other things, annul a negative declaration of environmental impact issued by respondent New York State Housing Finance Agency (HFA), Supreme Court providently exercised its discretion in denying petitioners' motion for a preliminary injunction (see Gilliland v Acquafredda Enters., LLC, 92 AD3d 19, 24-25 [1st Dept 2011]). Petitioners did not demonstrate a likelihood of success on the merits (id.), since HFA identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232 [2007] [internal quotation marks omitted]). The environmental assessment form (EAF) specifically analyzed the issues of secondary displacement and of the project's impact on the view from Prospect Park, [*2]and found no significant adverse environmental impacts. Even if the project should have been designated as a Type I action, any misclassification was harmless error, because the procedures applicable to Type I actions were used — namely, the Full EAF (see Matter of Rusciano & Son Corp. v Kiernan, 300 AD2d 590, 590-591 [2d Dept 2002], lv denied 99 NY2d 510 [2003]; Matter of Jaffe v RCI Corp., 119 AD2d 854, 855 [3d Dept 1986], lv denied 68 NY2d 607 [1986]). HFA properly submitted a supplemental affidavit to explain the analysis set forth in the EAF in response to the challenges raised by petitioners in this proceeding (see Matter of Chinese Staff & Workers' Assn. v Burden, 88 AD3d 425, 433 [1st Dept 2011], affd 19 NY3d 922 [2012]).
Supreme Court properly determined that the impact of HFA's financing of the project is slight, since the project can be built "as of right" without HFA's financing (see Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Council of City of N.Y., 214 AD2d 335, 337 [1st Dept 1995], lv denied 87 NY2d 802 [1995]).
We have considered petitioners' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 3, 2015
CLERK


