Hilbertz v. City of New York

210 A.D.3d 1089

179 N.Y.S.3d 696

In the Matter of Derrick HILBERTZ, et al., respondents,

v.CITY OF NEW YORK, et al., appellants.

2019–06752, 2019–06753, 2019–06755

Index No. 520815/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 17, 2022

November 30, 2022

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Aaron M. Bloom and Diana Lawless of counsel), for appellants City of New York, New York City Landmarks Preservation Commission, and New York City Housing, Preservation & Development.

FisherBroyles LLP, New York, NY (Christina H. Bost Seaton and Richard B. Cohen of counsel), for appellants Institute for Community Living, Institute for Community Living Real Property Holding Corp., and ICL St. Marks Avenue Apartments, L.P.

Jacqueline McMickens & Associates, PLLC, Brooklyn, NY (Stephen J. Riegel and Phillip A. Solomon of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent/defendant New York City Landmarks Preservation Commission dated June 28, 2017, granting an application for a certificate of appropriateness, and action for declaratory relief, the respondents/defendants Institute for Community Living, Institute for Community Living Real Property Holding Corp., and ICL St. Marks Avenue Apartments, L.P., appeal from (1) a judgment of the Supreme Court, Kings County (Katherine A. Levine, J.), dated April 2, 2019, (2) a judgment of the same court dated April 5, 2019, and (3) an amended judgment of the same court dated April 11, 2019, and the respondents/defendants City of New York, New York City Landmarks Preservation Commission, and New York City Housing, Preservation & Development separately appeal from the amended judgment. The amended judgment, insofar as appealed from, granted that branch of the amended petition/complaint which was to annul the determination dated June 28, 2017, and remitted the matter to the respondent/defendant New York City Landmarks Preservation Commission for further proceedings.

ORDERED that the appeals from the judgments are dismissed, as the judgments were superseded by the amended judgment; and it is further,

ORDERED that the amended judgment is reversed insofar as appealed from, on the law, that branch of the amended petition/complaint which was to annul the determination dated June 28, 2017, is denied, and the proceeding is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the respondents/defendants.

The respondents/defendants Institute for Community Living, Institute for Community Living Real Property Holding Corp., and ICL St. Marks Avenue Apartments, L.P. (hereinafter collectively the ICL respondents), own a parcel of real property located at 839 St. Marks Avenue, at the intersection of St. Marks Avenue and Brooklyn Avenue in Crown Heights (hereinafter the subject property), where they operate a residence for people with mental and developmental disabilities. The subject property is improved with a mansion constructed in the 1860s, a three-story brick addition constructed in the 1930s extending north from the mansion along Brooklyn Avenue, and a garden to the east along St. Marks Avenue. The subject property lies within an area the respondent/defendant New York City Landmarks Preservation Commission (hereinafter the Commission) designated as the Crown Heights North Historic District in 2007.

In February 2016, the ICL respondents made an application to the Commission for a certificate of appropriateness (hereinafter COA) for permission to make certain renovations to the mansion and to replace the 1930s addition with a new 5½-story, L-shaped residential structure fronting both Brooklyn Avenue and St. Marks Avenue. Unlike the 1930s addition, which stands flush against parts of the mansion's northern and western faces, the new structure would connect to the mansion only by means of a one-story glass walkway. The new structure would, however, extend into the garden along St. Marks Avenue and appear to wrap around the northeast corner of the mansion. After a public hearing in March 2016, the ICL respondents submitted a revised plan reducing the new structure's apparent height along St. Marks Avenue and reorienting entrances and pathways into the garden so as to preserve the existing garden context, among other things. The Commission held another public hearing on the application and then voted to grant it. The Commission thereafter issued a determination dated June 28, 2017, granting the application for a COA.

The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to review the Commission's determination and action for declaratory relief. In a judgment dated April 2, 2019, a judgment dated April 5, 2019, and an amended judgment dated April 11, 2019, the Supreme Court granted that branch of the amended petition/complaint which was to annul the Commission's determination, remitted the matter to the Commission for further proceedings, and, in effect, dismissed the remainder of the proceeding/action. The court determined that the Commission's determination to grant the application for a COA was arbitrary and capricious and in contravention of law. The ICL respondents appeal from the judgments and the amended judgment, and the Commission and the defendants/respondents City of New York and New York City Housing, Preservation & Development appeal from the amended judgment.

The judgments and the amended judgment grant the same relief and are otherwise substantively identical to one another. The ICL respondents’ appeals from the judgments must therefore be dismissed, as the judgments were superseded by the amended judgment (see Armstrong Trading Ltd. v. MBM Enters., 29 A.D.3d 834, 835, 814 N.Y.S.2d 534 ).

"Judicial review of the...