Complaint dismissed for failure to join owner

Controversial luxury condos to proceed adjacent to new Brooklyn Cruise Ship Terminal. In 2002, 160 Imlay Street LLC applied to BSA for a use variance to allow the conversion of a vacant six-story industrial building and the addition of three stories for a proposed luxury condominium building in the Red Hook section of Brooklyn. The proposed site, a 61,546-square-foot, manufacturing- zoned lot located at 160 Imlay Street, is adjacent to the new Brooklyn Cruise Ship Terminal, which is anticipated to open late this year. BSA granted the variance on December 23, 2003 for a reduced project, allowing the conversion of the 6-story building into 150 luxury condominiums with ground floor retail.

The Red Hook-Gowanus Chamber of Commerce, concerned that the conversion would increase land prices and drive out existing businesses, filed an article 78 petition challenging BSA’s decision. The Chamber of Commerce argued that 160 Imlay Street LLC did not submit enough evidence to BSA to prove economic hardship because it did not thoroughly search for an industrial or commercial tenant to occupy the building under its current M2-1 zoning.

The City moved to dismiss the proceeding, claiming that the Chamber of Commerce failed to join 160 Imlay Street LLC, the property owner as well as the developer, as a necessary party. The lower court denied the City’s argument and allowed the Chamber of Commerce to file and serve an amended petition.

On appeal, the Second Department reversed and dismissed the complaint. The court ruled that the Chamber of Commerce’s failure to adequately explain why it did not timely include 160 Imlay LLC as a necessary party precluded it from going forward with its claim.

In re Red Hook/Gowanus Chamber of Commerce v. BSA, 2005 NY Slip Op 03860, May 9, 2005 (2nd Dep’t) (Attorneys: Michael S. Hiller, for Chamber of Commerce; Michael A. Cardozo, Leonard Koerner, Pamela Seider Dolgow, Louise Moed, for BSA and City; Robert S. Davis, Evan A. Gross, for 160 Imlay Street Real Estate, LLC).

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