Campbell Apt., Ltd. v Metropolitan Transp. Auth.

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Campbell Apt., Ltd. v Metropolitan Transp. Auth. 2017 NY Slip Op 31165(U) May 24, 2017 Supreme Court, New York County Docket Number: 100532/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/01/2017 11:46 AM 1] NYSCEF DOC. NO. 130 INDEX NO. 100532/2016 RECEIVED NYSCEF: 06/01/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED, J.S.C. PART 2 Justice -------------------------------------------------------------------------~--X THE CAMPBELL APARTMENT, LTD., INDEX NO. 100532/2016 Petitioner, MOTION DATE MOTION SEQ. NO. -vMETROPOLITAN TRANSPORTATION AUTHORITY, METRONORTH COMMUTER RAILROAD, THE GERBER GROUP LIMITED PARTNERSHIP, THE GERBER GROUP, JOHN DOES 1TO5, 003 DECISION AND ORDER Respondent. ---------------------------------------------7---------------------------X The following e-filed documents, listed by NYSCEF document number 96, 97, 98, 99, 100, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129 Attorneys' Fees were read on this application to/for Upon the foregoing documents, the motion is denied. The Campbell Apartment, Ltd., the former tenant of the Campbell Apartment, a bar at Grand Central Terminal, commenced a proceeding pursuant to CPLR article 78 alleging that respondents/landlords The Metropolitan Transportation Auth9rity and Metro-North Commuter Railroad (collectively "the MT A") conducted an improper request for proposals ("RFP") seeJ.<.ing a new tenant for the bar, thereby violating Public Authorities Law ("PAL") section 2897(3) by failing to obtain an independent appraisal of the rental value of the premises. The petitioner further alleged that the entire rental process was fatally flawed. 100532/2016 CAMPBELL APARTMENT, LTD. vs. METROPOLITAN TRANSPORTATION Motion No. 003 2 of 6 Page 1of5 [*FILED: NEW YORK COUNTY CLERK 06/01/2017 11:46 AM 2] NYSCEF DOC. NO. 130 INDEX NO. 100532/2016 RECEIVED NYSCEF: 06/01/2017 In a decision and order dated June 22, 2016, this Court agreed that the MT A violated the PAL but allowed it to conduct an independent appraisal of the fair market rental value of the Campbell Apartment in order to salvage the RFP process. Specifically, this Court determined that, if the MT A conducted an independent appraisal which established that the rental value of the Campbell Apartment was less than that bid by the proposed new tenant of the space during the RFP process, the said process would be saved. This Court explained that the RFP process could be cured since possession of the premises had not yet been transferred to the propos'ed new tenant found by the MT A and that the intent of PAL 2897(3) would be satisfied so long as the successful bidder's proposed rent exceeded fair market value. By order and judgment dated August 9, 2016, this Court dismissed the petition after it determined that an independent appraisal conducted by the MTA revealed that the successful bidder's proposed rent exceeded fair market rental value. 1 Petitioner now seeks reimbursement of attorneys' fees from the MT A pursuant to the Equal Access to Justice Act ("the EAJA") as set forth in CPLR article 86. It also seeks costs and disbursements pursuant to CPLR 8101 and 8301. For the reasons set forth below, the application is denied. The EAJA provides that "a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." CPLR 860l(a). "The statute was enacted to 'improv[e] access to justice 1 The facts of this matter are set forth in detail in the decision and order of this Court dated June 22, 2016 and the decision and judgment of this Court dated August 9, 2016. 100532/2016 CAMPBELL APARTMENT, LTD. vs. METROPOLITAN TRANSPORTATION Motion No. 003 3 of 6 Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 06/01/2017 11:46 AM 3] NYSCEF DOC. NO. 130 INDEX NO. 100532/2016 RECEIVED NYSCEF: 06/01/2017 for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification' (Governor's Approval Mem, L 1989, ch 770, 1989 NY Legis Ann, at 336)." New York State Clinical Lab. Ass 'n v Kaladjian, 85 NY2d 346, 351 (1995). Initially, the motion must be denied since petitioner is not a "[p]arty", as defined by CPLR 8602(d). Thus, it is not "eligible to receive to receive an award pursuant to the EAJA." Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 90 AD3d 1529, 1529 (4 1h Dept 2011). Even assuming, arguendo, that petitioner were a party eligible to seek attorneys' fees pursuant to the EAJA, it could not recover the same herein since it has not established that it is a "[p ]revailing party" within the meaning of CPLR 8602 (f). That statute defines a "[p ]revailing party" as "plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues." Id. "Although the legislative history is silent regarding the import of the definitional phase at issue, the Legislature's reference to success on separate issues is significant because it indicates that the degree of success obtained by a plaintiff in relation to the other goals of the lawsuit is a threshold factor in determining eligibility for a fee award of any kind" (emphasis provided) Kaladjian, 85 NY2d 346, at 353. In Kaladjian, the Court of Appeals held that: [A] party has "prevailed" within the meaning of the State EAJA ifit has succeeded in acquiring a substantial part of the relief sought in the lawsuit. Thus, a "prevailing party" is not one who has succeeded on merely "any significant issue" in the litigation which achieved only "some of the 100532/2016 CAMPBELL APARTMENT, LTD. vs. METROPOLITAN TRANSPORTATION Motion No. 003 4 of 6 Page 3 of S [*FILED: NEW YORK COUNTY CLERK 06/01/2017 11:46 AM 4] NYSCEF DOC. NO. 130 INDEX NO. 100532/2016 RECEIVED NYSCEF: 06/01/2017 benefit" sought in bringing the lawsuit ... Rather it is a plaintiff who can · show that it succeeded in large or substantial part by identifying the original goals of the litigation and by demonstrating the comparative substantiality of the relief actually obtained. Kalacfjian, 85 NY2d 346, at 355. Based on this standard, this Court concludes that the petitioner did not prevail in this matter. Kaladjian, 85 NY2d 346, at 355; Apollon v Giuliani, 246 AD2d 130, 136 (1st Dept 1998). The petitioner sought to annul the RFP process due to the MTA's alleged failure to 1) have an independent appraisal performed; and 2) conduct an open and fair bidding process. Ex. D to Nicolich Aff. In Opp., at p. 14. The petitioner also sought to enjoin the MT A "from entering into any lease in connection with the RFP." Id. Although, as noted above, this Court found that the RFP process was deficient because the MT A did not obtain an independent appraisal, this Court, in its decision and order dated June 22, 2016, allowed the MT A to rectify this deficiency so that the RFP process could be salvaged. Once the MT A obtained the independent appraisal, this Court, in its order and judgment dated August 9, 2016, determined that the MTA had satisfied PAL 2897(3), that the RFP process was properly conducted, that the stay preventing the MTA from re-letting the Campbell Apartment to another tenant was vacated, and that the petition was dismissed. It is evident that the petitioner prevailed on the limited issue of the improper appraisal which violated PAL 2897(3). However, this was a quintessentially pyrrhic victory: once an independent appraisal was performed and the amount of the appraisal was less than the amount bid by the MT A's proposed new tenant, the petition was dismissed and the MTA was permitted 10053212016 CAMPBELL APARTMENT, LTD. vs. METROPOLITAN TRANSPORTATION Motion No. 003 5 of 6 Page 4 of 5 [*FILED: NEW YORK COUNTY CLERK 06/01/2017 11:46 AM 5] NYSCEF DOC. NO. 130 INDEX NO. 100532/2016 RECEIVED NYSCEF: 06/01/2017 to enter into a new lease with the proposed new tenant. Since the petitioner did not "demonstrate[e] the comparative substantiality of the relief[ it] actually obtained", as compared to that awarded to the MT A, it has failed to establish that it was a prevailing party herein. Kaladjian, 85 NY2d 346, at 355; c.f, Dicent v Wing, 283 AD2d 185 (l51 Dept2001). Given the above, it is not necessary for this Court to address the parties' remaining contentions. Jn light of the foregoing, it is hereby: ORDERED that the petitioner's motion for attorneys' fees pursuant to the Equal Access to Justice Act is denied; and it is further ORDERED that this constitutes the decision and order of the court. 5/24/2017 DATE CHECK ONE: CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART . APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 100532/2016 CAMPBELL APARTMENT, LTD. vs. METROPOLITAN TRANSPORTATION Motion No. 003 6 of 6 D OTHER D REFERENCE Page 5 of 5

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