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

IN RE: CIVIC ASSOCIATION OF UTOPIA ESTATES, INC., et al., appellants, v. CITY OF NEW YORK, et al., respondents.

Decided: February 22, 1999

FRED T. SANTUCCI, J.P., DANIEL W. JOY, MYRIAM J. ALTMAN and DANIEL F. LUCIANO, JJ. Cravath, Swaine & Moore, New York, N.Y. (Max R. Shulman and Andrew G. Gordon of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Leonard Koerner, Joseph Saab, and Kristin M. Helmers of counsel), for respondents.

In a proceeding, inter alia, pursuant to CPLR article 78 to prohibit the respondents from going forward with any aspect of Capital Sewer Project SE-743 until they have complied with various statutes and regulations, the petitioners appeal from a judgment of the Supreme Court, Queens County (Lonschein, J.), dated February 26, 1998, which, inter alia, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

This proceeding concerns the respondents' proposal to replace certain existing sewer lines with sewer lines of greater capacity in order to alleviate flooding conditions in the Jamaica Estates section of Queens County.   The petitioners, residents of the neighboring Utopia Estates area, object to the proposed sewer project on the ground that the respondents allegedly failed to comply with, among other statutes, the State Environmental Quality Review Act (ECL article 8 [hereinafter SEQRA] ) and the Uniform Land Use Review Procedure (hereinafter ULURP) under New York City Charter § 197-c.   The petitioners commenced this proceeding seeking to prohibit the sewer project until these alleged failures were remedied.

 Regarding the petitioners' SEQRA claims, we note that since the proposed sewer project is a so-called Type II action (see, 6 NYCRR 617.5[c] [3] ), the lead agency in this case, the Department of Design and Construction of the City of New York, had no further responsibilities under SEQRA (see, 6 NYCRR 617.6[a][1][i] ).

 Although the petitioners additionally claim that the respondents failed to comply with ULURP under New York City Charter § 197-c(a)(5), which brings “site selections for capital projects” within the ambit of ULURP review, the subject sewer project is exempt from such review (see, Matter of Silver v. Koch, 137 A.D.2d 467, 525 N.Y.S.2d 186;  Starburst Realty Corp. v. City of New York, 125 A.D.2d 148, 512 N.Y.S.2d 60;  see also, Matter of 78th Street Assoc. v. City of New York, 25 N.Y.2d 662, 306 N.Y.S.2d 472, 254 N.E.2d 772).

Accordingly, the court properly determined that, given the nature of this project, the respondents were not required to comply with SEQRA, ULURP, or related statutes and regulations before going forward with it.

The petitioners' remaining contentions are without merit.


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