Matter of Board of Mgrs. of the Plaza Condominium v New York City Dept. of Transp.

Matter of Board of Mgrs. of the Plaza Condominium v New York City Dept. of Transp. 2015 NY Slip Op 06407 Decided on August 4, 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 August 4, 2015
Tom, J.P., Renwick, Andrias, Manzanet-Daniels, Kapnick, JJ.
15394 101392/13

[*1] In re Board of Managers of the Plaza Condominium, Petitioner-Appellant,

v

The New York City Department of Transportation, et al., Respondents-Respondents.

Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Stephen H. Orel and Steven D. Sladkus of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for municipal respondents.

Winget, Spadafora & Schwartzberg, LLP, New York (Dianna D. McCarthy of counsel), for Citibank, N.A., and NYC Bike Share, LLC, respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 29, 2014, which denied the petition, seeking, among other things, to annul respondent Department of Transportation's decision to install a City Bike Share station across from the front entrance to petitioner's building, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The record establishes that the municipal respondents took the requisite "hard look" at the bike share program's potential environmental impacts, including to historical and architectural resources, and provided a "reasoned elaboration" of the basis for their approval of the program (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231—232 [2007]). Accordingly, its determination was not arbitrary and capricious and was not affected by an error of law (see id.; Akpan v Koch, 75 NY2d 561, 570 [1990]; see also Matter of Cambridge Owners Corp. v New York City Dept. of Transp., 118 AD3d 634 [1st Dept 2014]).

Contrary to petitioner's contention, the municipal respondents properly examined the citywide program as a whole because individual review could fail to disclose the overall impact of the program (see CEQR Technical Manual at 2-2 to 2-3; Matter of Cambridge Owners Corp., 118 AD3d at 634). Thus, each individual Bike Share station did not necessitate its own environmental review. The record also establishes that the municipal respondents considered alternate sites for this particular bike station, and rejected them for various reasons, including pedestrian congestion, safety, parking issues, and failure to comport with the siting guidelines (see C/S 12th Avenue LLC v City of New York, 32 AD3d 1, 5 [1st Dept 2006])

Even assuming that the program was misclassified as Unlisted instead of being designated a Type I action, as petitioner claims, respondents properly found that no significant environmental impact will result from the program and thus no environmental impact statement was required (see Matter of Hells Kitchen Neighborhood Assn. v City of New York, 81 AD3d 460, 462 [1st Dept 2011], lv denied 16 NY3d 712 [2011]). Thus, any alleged misclassification would constitute harmless error since it was nonprejudicial (see Matter of Rusciano & Son Corp. [*2]v Kiernan, 300 AD2d 590, 590-91 [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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 4, 2015

CLERK