Opinion
11452-11452A Index 152692/19
05-07-2020
In re CANNON POINT PRESERVATION CORPORATION, et al., Petitioners-Appellants, v. The CITY NEW YORK, et al., Respondents–Respondents.
Gibson, Dunn & Crutcher LLP, New York (Jennifer H. Rearden and Randy M. Mastro of counsel), for appellants. James E. Johnson, Corporation Counsel, New York (Anna W. Gottlieb of counsel), for municipal respondents. Letitia James, Attorney General, New York (Ari J. Savitzky of counsel), for State Department of Transportation, respondent.
Gibson, Dunn & Crutcher LLP, New York (Jennifer H. Rearden and Randy M. Mastro of counsel), for appellants.
James E. Johnson, Corporation Counsel, New York (Anna W. Gottlieb of counsel), for municipal respondents.
Letitia James, Attorney General, New York (Ari J. Savitzky of counsel), for State Department of Transportation, respondent.
Manzanet-Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 10, 2019, dismissing the action, and bringing up for review an order, same court and Justice, entered on or about September 17, 2019, which denied the petition to annul determinations by various agencies, under, among other laws, the New York State Environmental Quality Review Act that the "East Midtown Esplanade Project" would have no significant adverse environmental impact, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court correctly found that petitioners' claims pursuant to the New York State Environmental Quality Review Act (SEQRA) ( Environmental Conservation Law § 8–0101 et seq. ) are time-barred, since the four-month statute of limitations began to run upon the end of the public comment period following the issuance of the final SEQRA review, years before this proceeding was brought (see Stop–The–Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40, 803 N.E.2d 361 [2003] ). It does not avail petitioners to argue that the statute of limitations did not begin to run until the New York City Public Design Commission preliminarily approved the project following its review of design issues (see Matter of Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 A.D.3d 28, 35–36, 796 N.Y.S.2d 64 [1st Dept. 2005] ).
The court correctly found that the public trust doctrine is inapplicable, since the site at issue was not impliedly designated parkland. Petitioners point to some evidence that the site was treated as parkland, such as communications by respondent New York City Department of Parks and Recreation referring to the site as a "park," but they failed to meet their burden of showing acts and declarations "unmistakable in their purpose and decisive in their character to have the effect of a dedication" of parkland ( Matter of Glick v. Harvey, 25 N.Y.3d 1175, 1180, 15 N.Y.S.3d 733, 36 N.E.3d 640 [2015] [internal quotation marks omitted]; see e.g. Matter of Bronx Council for Envtl. Quality v. City of New York , 177 A.D.3d 416, 111 N.Y.S.3d 592 [1st Dept. 2019] ). Even if the site were designated parkland, legislative approval would not be required, since any parkland would not be alienated by the proposed placement of a pedestrian and bicycle bridge terminating in the site at issue (see e.g. Matter of Friends of Petrosino Sq. v. Sadik–Khan , 126 A.D.3d 470, 5 N.Y.S.3d 397 [1st Dept. 2015] ). Petitioners' disagreement with respondents' exercise of their broad discretion as to the best alternative use of the site does not establish such alienation (see Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648, 655, 985 N.Y.S.2d 422, 8 N.E.3d 797 [2014] ).
In light of the foregoing, we need not reach the remaining arguments raised on appeal.