Mount Builders, LLC v. Perlmutter

200 A.D.3d 616

155 N.Y.S.3d 772 (Mem)

In the Matter of MOUNT BUILDERS, LLC, Petitioner–Appellant,

v.Margery PERLMUTTER etc., et al., Respondents–Respondents.

14905

Index No. 154078/20

Case No. 2021-01061

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

ENTERED December 28, 2021

Rothkrug Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for appellant.

Georgia M. Pestana, Corporation Counsel, New York (Benjamin H. Pollak of counsel), for respondents.

Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.

Judgment (denominated an order), Supreme Court, New York County (Carol R. Edmead, J.), entered on or about November 19, 2020, denying the petition seeking to vacate a resolution of the Board of Standards and Appeals of the City of New York (BSA), dated February 25, 2020, which upheld the decisions of the New York City Department of Buildings (DOB) to deny 163 of petitioner's residential construction applications and denied petitioner's application for an order directing the DOB to waive enforcement of General City Law § 36(2), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

BSA rationally concluded that petitioner failed to make the necessary showing of either practical difficulty or unnecessary hardship within the meaning of General City Law § 36(2) (see Matter of MSK Realty Interests, LLC v. Department of Fin. of the City of N.Y., 170 A.D.3d 459, 460, 95 N.Y.S.3d 191 [1st Dept. 2019], appeal dismissed 33 N.Y.3d 1057, 103 N.Y.S.3d 351, 127 N.E.3d 309 [2019] ; Brock Props., Inc. v. Bockman, 166 A.D.2d 525, 525–526, 560 N.Y.S.2d 807 [2d Dept. 1990] ). Indeed, the record amply supports BSA's conclusion that, among other things, petitioner failed to demonstrate that it could not build the proposed streets and obtain mapping approval, or that it could not develop the site by providing access through existing mapped streets. While using unmapped streets may be more financially lucrative, that fact, standing alone, is insufficient to establish practical difficulty (see Matter of Stevens v. Clarke, 216 A.D. 351, 360, 215 N.Y.S. 190 [2d Dept. 1926] ).

Although BSA exercised its discretion in this proceeding more narrowly than it had in past waiver applications, its decision set forth a rational policy basis for changing its approach, and for requiring petitioner to demonstrate close compliance with the statutory requirements (see Cowan v. Kern, 41 N.Y.2d 591, 595, 394 N.Y.S.2d 579, 363...