IN RE: LANDMARK WEST! (2006)

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered September 6, 2005, which, in a proceeding pursuant to CPLR article 78 brought by a community advocacy group seeking to prohibit respondent Tierney, Chair of the City of New York Landmarks Preservation Commission, from participating in proceedings related to the possible landmark designation of a building located at 2 Columbus Circle in Manhattan, which building respondent Museum of Arts and Design intends to purchase, inter alia, granted respondents' motions to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.

 Petitioner's claims challenging the legality of the Commission's procedures are improperly raised for the first time on appeal (see Sean M. v. City of New York, 20 A.D.3d 146, 149-150, 795 N.Y.S.2d 539 [2005] ), and also collaterally estopped by the findings made in Matter of Landmark West! v. Burden, 3 Misc.3d 1102(A), 787 N.Y.S.2d 678, 2004 Slip Op. 50331(U), 2004 N.Y. Misc. LEXIS 464 [2004], 2004 WL 913217, affd. 15 A.D.3d 308, 309, 790 N.Y.S.2d 107 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 163, 840 N.E.2d 132 [2005] that, inter alia, the Commission was not obligated to hold a public hearing before deciding not to calendar a request for the property's designation as a landmark.   Insofar as petitioner's application is based on NY City Charter § 1046(c), which prohibits ex parte communications between parties and a hearing officer in an “adjudication,” i.e., “a proceeding in which the legal rights, duties or privileges of named parties are required by law to be determined by an agency on a record and after an opportunity for a hearing” (NY City Charter § 1041), the application was properly denied on the ground that landmark designations are administrative, not adjudicative, in nature (see Matter of Teachers Ins. & Annuity Assn. v. City of New York, 82 N.Y.2d 35, 41, 603 N.Y.S.2d 399, 623 N.E.2d 526 [1993];  Matter of Doro's Rest. v. City of New York, 179 A.D.2d 406, 407, 578 N.Y.S.2d 163 [1992] ), and therefore not subject to section 1046.   Petitioner's conspiracy and 42 USC § 1983 claims lack allegations sufficient to show a scheme to undermine its First Amendment right to petition the Commission.   We have considered and rejected petitioner's other arguments.