SUTHERLAND v. NEW YORK CITY HOUSING DEVELOPMENT CORPORATION (2009)

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 17, 2008, which, in a CPLR article 78 proceeding seeking to annul respondent New York City Housing Development Corporation's (HDC) determinations (1) that respondent AMP Apartments' (AMP) housing construction project would have no significant environmental impact, and (2) to provide funds for affordable housing to the AMP project, denied the petition and dismissed the proceeding, unanimously affirmed, without costs.

 To the extent petitioners challenge construction of AMP's residential building as obstructing the views from their apartments, Supreme Court correctly concluded that the challenge was moot.   By the time this proceeding was commenced, the building project was substantially complete, petitioners had failed to seek preliminary injunctive relief, there was no evidence that construction work was performed in bad faith, and such work could not be readily undone without undue hardship (see Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004];  Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172-173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ).

 To the extent petitioners challenge HDC's decision to provide tax-exempt funds allowing 20% of the apartment units in the building to be designated as affordable housing for low income tenants, Supreme Court correctly concluded that petitioners lack standing.   The unrefuted evidence shows that the building's structure would have been the same without HDC's funding, the only difference being that without such funding, all of the apartment units would rent at market rates.   Accordingly, petitioners fail to establish any nexus between the view obstruction injury they allege and HDC's funding of the project (see Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433, 559 N.Y.S.2d 947, 559 N.E.2d 641 [1990] ).   In addition, petitioners fail to show that such funding caused them to suffer hardships, namely, view obstruction, not also experienced by the public at large (see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004];  Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774-775, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ).