Ball v New York City Hous. Auth.

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Ball v New York City Hous. Auth. 2012 NY Slip Op 30859(U) March 12, 2012 Sup Ct, NY County Docket Number: 108372/11 Judge: Geoffrey D. Wright Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: GEOFFREY D.S. WRIGYT PART 02 Justice In The Matter Of The Applicatlon Of TYRONE BALL, eta., Plalntlff/Petltloner(s) -vNEW YORK CITY HOUSING AUTHORITY, THE CITY OF NEW YORK, et al., INDEX NO. 108372/11\ MOTION DATE MOTION SEQ. NO. CC 1 j 7 Defendants The following papers, numbered I to 23 were read on thls motion tolfor prellmlnary Injunction PAPER3 YUMBFRED Notice of Motlonl Order to Show Cause Answerlng Affldavlts -Affldavlts - Exhibits ... - Exhiblts a Re lylng Affidavits Ot er I5,16,17,18,183O~1,22~ - Cross-Motion: Yes X No Upon the foregolng papers, it Is ordered that thls motlon/petitlon by the Petitlonersfor a prellmlnary lnjunctlon Is denled, alplo.. Dated: Mar 12,2012 Check one: -- FINAL DISPOSITION X N O N - F I N A L ~ b O S I T I O N I I Check if appropriate: [7 DO NOT POST FILED NEW YORK COUNTY CLERKS OFFICE 33 [* 2] 1 L FILED SUPREME COURT OF THE STATE OF NEW Y O N APR 0 4 2012 COUNTY OF NEW Y O N : Part 62 .............................................................. X NEW YORK TYRONE BALL, ADRIAN BIGGS, COUNTY CLERKS OFFICE FRANSOIZE BRADFORD, BRENDA BROWN, C A R L BURKS, TAMETHA BURNEY, MARGARITA CABAN, BRENDA CABRER4, ALTAGRACIA CLUMES, VICTORIA COCHRANE, EUGENE COLE, PAMELA COLEMAN, JULIAN COOPER, CARMEN CRESPO, WILLIAM DANZY, JANIRA DE LOS SANTOS, KADIDIA DIAKTTE, ALTAGRACIA DIAZ, ALMASI DOWLING, LEONA DRAPER, SARAH EVANS, EUGENIA GOMEZ, MICHELLE GOODMAN, GABIUELLE GROOMS, DELORES HARRIS,HUGH HEWITT, FRANCES HINTON, LUELLA HOOKS, LUAL HORTON, FRANK JAMES, MAXINE JENKINS, LESLIE JOHNSON, EVA KEYS, CORY KNIGHT, MAURICE LAMBRIGHT, JACQUELINE LEE, EVA LESANE, LISA LOPEZ, FREDDIE LUKE, MAGGE LYONS, MONICA MANNERS, TYRONE MCCLURGE, DOROTHY MCDONAL,D, A N N MCKINNEY, ISADORA MILLIGAN, WENDY K. MOORE, EVELYN MOORE, BARBARA MOSES, WILLNESS MOYO, MAGGIE MYERS, MARIA NEGRON, JACOB NELSON, JR., YOLANDA ODOM, MANUEL OLIVO, DAVID OTIS & MORRIS OTIS, JOSEPH PAGE, FELIPA PALACIOS, NYITA PATTERSON, DELORIS PINKNEY, ALEXANDRA RAMOS, JUANITA RAMOS, CAROLYN RILEY, GLORIA RIVERA, MICHELLE IUVERA, TERESA ROBINSON, NORMAN ROCHFORD, FORIBIA RODRIGUEZ, OMAR FRANK RODRIGUEZ, SHASHONA SALLEY, RUFUS C. SHAW, ADRIENNE SIMMONS, JOAN SMITH, RICHARD SPELLER, MARY SPELLMAN, MISSOULE ST. VICTOR, JOSEPHINE TEAL, ZUNILDA TESADA, LEONOR THELMA, NATHANIEL THOMAS, YOLANDA THOMAS, CAROL TOLBERT, CAROLYNE TOLBERT, VICTOR TORRES, DAVID VALENTINE, CANDIDA VASQUEZ, MAXINE VAUGHN, AHADINA VAZQUEZ, FRANCINE WALLACE, LINDA WASHINGTON, WILLIAM WELCOME, AL,BERTHA WJ4ALEY, ARNETTE WHEELER, ANNETTE WILLIAMS, PATRICU HARDY WILTSHIRE, VALERIE WRIGHT, CATHERINE YATES, and STATE SENATOR BILL P E I K N S Petitioners, 30 [* 3] -against- THE NEW YORK CITY HOUSING AUTHORITY, THE CITY OF NEW YORK, HARLEM CHILDREN'S ZONE, M.C., MICHAEL BLOOMBERG, As Mayor Of The City Of New York and JOHN B. RHEA, As Chairman Of The New York City Housing Authority, Index# 1 1 108372/11 Motion Cal. # Motion Seq. # DECISION/ORDER Present: Won. Geoffrey Wright Judge, Supreme Court Respondents. X --___--_---1___-_----------------------------------~----------- Recitation, required by CPLR 22 19(a), of the papers considered in the review of this Motion for Preliminary Injunction: PAPERS Notice of PetitionlMotion, Affidavits & Exhibits Annexed NUMBERED 1,2,3,4,5,6,7,8,9,10 11,12,13,14 Order to Show Cause, Affidavits & Exhibits Answering Affidavits & Exhibits Annex 2 1,22,23 Replying Affidavits & Exhibits Annexed Other (Cross-motion) & Exhibits Annexed APR 04 2012 Upon the foregoing cited papers, the DecisiodOrder on this Motion is as follows: Ninety plus residents of the St. Nicholas Houses, a large community owned and operated by the New York City Housing Authority, bring this proceeding to stop the completion of a charter school that has been under construction since March of 20 11, when the first piece of ground was broken. The school is being erected in the middle of the project, and will deprive the residents of approximately 1.3 acres of land that was purchased from the New York City Housing Authority for the purpose of building the school. To accommodate the residents, some of the aesthetic amenities of the area have been transplanted, literally, in the case of trees that have been uprooted and moved, or stored be replanted upon the completion of construction. The petition seeks to achieve its goal of stopping, or tearing down the school, on the basis of the following issues: (1) alienation of park land; (2) breach of the warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) failure to conduct an environmental review; ( 5 ) failure to comply with ULURP procedures; (6) failure to comply with ULURP procedures in the sale of land; (7) failure to consult with the residents on the sale of Housing Authority property. 31 [* 4] Some of the claims can be disposed of summarily. Claims two and three, dealing with the individual claims of residents of the St. Nicholas Houses, sounding in the warranty of habitability or quiet enjoyment, must be dismissed in that they have not claimed, and indeed, concede, that no notice of claim alleging the breach of the warranty of habitability or of quiet enjoyment was ever served [PUELICAUTHORITYLA This project began to be discussed w157I. in public as early as 2009. The decision to do forward was announced in December 20 10, meaning that any action on the foregoing claims had to be commenced no later than April, 20 11. This proceeding was commenced in July, 20 11, beyond the applicable time frame. As to the last claim in the petition, the failure to consult with residents of St. Nicholas Houses prior to the sale of property, is belied by the record submitted by the Respondents. Indeed, there is correspondence in the record from at least one of the petitioners, and Community Board meetings that belie this claim. The allegations anent the failure to conduct an environmental review and to comply with ULURP requirements is also belied by the record, which demonstrates, through the affirmations of Daniel Green and Cara McAteer, which explain in some detail, just how the project did in fact comply with the foundational requirements to get the project started. I take particular note of a letter, dated April 22,20 10, inviting the residents of St. Nicholas Houses to a meeting on the project that was scheduled for May 5,2010. On June 12,2010, there was an open house on the issue. The open house was continued on June 14, June 2 1 and June 28, 2010, as various details of the project were to be discussed with residents of St. Nicholas Houses, and apparently, anyone in the neighborhood who was interested in attending. Those meetings raise the question of laches, even assuming that the Petitioners could argue of limitation period beyond the basic four months referred to in CPLR 2 17 [SARATOGA COUNTY CHAMBER COMMERCE, V. PATAKI, N.Y.2d 801, 798 N.E.2d 1047 OF INC 100 N.Y.,2003, Where no other form of proceeding exists for the resolution of the claims tendered in the declaratoryjudgment action, the six-year limitation of CPLR2 13 (subd. 1) will then be applicable ( Solnick, 49 N.Y.2d at 230, 425 N.Y.S.2d 68, 401 N.E.2d 190). ; KAREDESV. COLELLA, NSY.2d45,79O 100 N.E.2d 257,760 N.Y.S.2d 84,2003 N.Y. Slip Op. 139221. However, where the delay in commencing an action results in substantial prejudice to another party, laches can apply, notwithstanding the fact that a period of limitation has not yet expired [MATTER OFBARABASH,N.Y.2d 76,81,334 N.Y.S.2d 890,286 N.E.2d 268 31 [1972]; see also MATTER OFDREIIWUSENV. ZONINGBD. OFAPPEALS, N.Y.2d 165,173 98 n. 4,746 N.Y.S.2d 429,774 N.E.2d 193 [2002]. While I am aware of current concerns about the progress of construction since this matter was last heard, the basic foundation has progressed to the point where it was at least 20% complete when the request for a preliminary injunction was first argued. Photographs submitted by the Respondents show that the so called park land that the Petitioners seek to preserve was gone by the date of the first court appearance, and many millions of dollars had been spent and many more committed. The Petitioners also requested a second hearing in court, which was held in December, thus allowed several months of more work to be done. 32 [* 5] The claim that park land has been alienated must be and is dismissed. The so-called park land is nothing more than a circle along a walkway through the grounds of the housing project. Park land must be dedicated as such in some manner [GRAYSON v. TOW OF HUNTINGTON, A.D.2d 835, 837, 554 N.Y.S.2d 269, lv. denied 76 N.Y.2d 714, 564 160 N.Y.S.2d 718, 565 N.E.2d 1269; CATHEDML CHURCH OF ST.JOHN THE DIVINEv. DORMTORYAUTHORITY OFSTATE OFNEW YORK,224 A.D.2d95,645 N.Y.S.2d 637). NO such finding can be made here, particularly, when the published layout of the grounds provides for playgrounds/parkland, in other areas of the campus, which space will not be disturbed here. The fact that some people put open space to improper use as football fields or golf courses, does not result in parkland. Although I advised the Petitioners that in proper circumstances, an order could be made directing the demolition of the project, the current circumstances do not meet that standard. As the record reveals, this project was the subject of much public discussion for many months prior to the transfer of title, or the commencement of actual work. Indeed, the inclusion of a State senator as a petitioner, confirms the existence of laches here, considering the amount to governmental input before any work was commenced. In this, as in all cases, the denial of a temporary restraining order is a clear signal that perhaps the applicant is on shaky ground. That is the case here. The motion for a preliminary injunction is denied. This constitutes the decision and order of the court. Dated: March 12,20 12 33

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