Residents missed deadline to serve BSA after filing petition challenging decision to grant developer time extension to complete hotel. Dutch Kills Partners obtained a permit from Buildings to develop a nine-story hotel at 39-35 27th Street in Long Island City, Queens. With 24 percent of the project’s foundation poured, the City approved the Dutch Kills Rezoning, which rendered the hotel project out-of-compliance with the maximum permitted floor area. 5 CityLand 149 (Nov. 15, 2008).
Dutch Kills Partners applied to BSA, claiming it had a common-law vested right to complete the project. Queens Community Board 1, local Council Member Jimmy Van Bramer, and residents opposed the application. They argued, among other things, that Dutch Kills Partners had not undertaken substantial construction because the work performed only amounted to three percent of the total work necessary to complete the hotel.
BSA granted Dutch Kills Partners an extension to complete the project. A group of neighbors filed an article 78 petition challenging the decision. The City filed a motion to dismiss, claiming that the neighbors missed the deadline to serve the City with notice of the article 78 petition. Pursuant to the New York CPLR, an article 78 petition challenging a BSA decision must be presented to the court within 30 days and served on the BSA within fifteen days of the 30th day. The neighbors’ attorney conceded that he had been unaware of the deadline, but in the interest of justice, asked a lower court for a time extension to serve the City. Justice Marguerite A. Gray refused to extend the deadline and dismissed the challenge.
Justice Gray found that the attorney had offered no excuse for the delay other than his ignorance of the rule creating the deadline, which had been in effect for almost thirteen years. The neighbors appealed the decision.
The Second Department affirmed, ruling that the lower court appropriately exercised its discretion in refusing to grant the neighbors extra time to serve notice. According to the Second Department, the neighbors failed to demonstrate that they diligently attempted to serve notice, or that the delay was reasonable.
Parrino v. BSA, 2011 N.Y. Slip Op. 09330 (2nd Dep’t Dec. 20, 2011).