Neighborhood coalition challenged variance to developer of site adjacent to Brooklyn Cruise Ship Terminal. In late 2003, when 160 Imlay Street LLC received a use variance to convert a six-story industrial building in Red Hook, Brooklyn into a luxury condominium, the Red Hook-Gowanus Chamber of Commerce filed an article 78 petition challenging the variance. The Chamber, however, named only BSA in its petition and as a result the petition has been appealed all the way to the Court of Appeals, where it was sent back to the trial court for a determination of whether the claim could proceed without Imlay. 2 CityLand 172 (Dec. 2005).

Nearly 28 months after Imlay received the variance, Justice Yvonne Lewis ruled that the Chamber’s article 78 challenge could proceed without Imlay. The court found that dismissing the claim for failure to name Imlay as a necessary party would leave BSA’s decision unchallenged and the Chamber without recourse. The court found that the Chamber would suffer the greater prejudice because it had no other remedy, while Imlay would retain its right to use the property commercially even if it could not build the luxury condos. Finally, Justice Lewis dismissed Imlay from the suit, but ruled that it could intervene in the proceedings if it so chose. (read more…)

Developer sought to build controversial waterfront luxury condos in Brooklyn. In 2003, BSA granted 160 Imlay Street LLC a use variance to convert a six-story industrial building in Red Hook, Brooklyn into 150 luxury condominiums. The Red Hook-Gowanus Chamber of Commerce sued within the 30-day statute of limitations, but named as defendants only the City and BSA. With the limitations period passed, the City moved to dismiss the petition, arguing that the Chamber failed to name 160 Imlay Street LLC, the property owner and developer, as a necessary party. The lower court allowed the Chamber to amend its petition. The appellate division reversed and dismissed the petition, ruling that the Chamber’s failure to adequately explain why it had not named 160 Imlay precluded it from going forward with its claim. 2 CityLand 76 (June 15, 2005).

The Court of Appeals reversed and remanded to the trial court, ruling that the appellate division should not have dismissed the petition solely on grounds that the Chamber offered no adequate explanation for its failure to name 160 Imlay as a necessary party. The Court ruled that, where the trial court did not have jurisdiction over a necessary party, it should have followed the CPLR 1001’s five-factor analysis to determine whether the claim could proceed without 160 Imlay. In sending the case back for consideration, the Court noted that omitting the landowner from litigation could still prove fatal in this case.

In reRed Hook/Gowanus Chamber of Commerce v. BSA, 2005 N.Y. LEXIS 2700, Oct. 25, 2005 (N.Y.) (Attorneys: Michael S. Hiller, for Chamber;Michael A. Cardozo, Pamela Seider Dolgow, for BSA and City; Robert S. Davis, Evan A. Gross, for 160 Imlay).