CPLR 2219(a) Recitation: NYSCEF No.: 1-7; 9-32. Petitioners, Voice of Gowanus, Friends and Residents of Greater Gowanus and individual residents of the Gowanus neighborhood, commenced this Article 78 proceeding against the City of New York, the New York City Department of City Planning, the Department of Housing Preservation and Development, the Department of Parks and Recreation and the Department of Citywide Administrative Services (Respondents). Petitioners filed their Petition and Notice of Petition on February 28, 2022, and served Respondents on April 26, 2022. Petitioners seek equitable relief to prevent Respondents from proceeding with approvals and activities for the large-scale construction and development project known as the Gowanus Neighborhood Rezoning (Rezoning) due to Respondents’ alleged failure to comply with various State and Federal laws including the New York State Environmental Quality Review Act (SEQRA). Specifically, Petitioners allege that the Final Environmental Impact Statement (FEIS) issued by the Department of City Planning (DCP) on September 10, 2021, fails to comply with SEQRA regulations. By Notice of Motion dated May 3, 2022, Respondents moved to Dismiss the Petition as untimely served under CPLR 306-b. By Notice of Cross Motion dated May 9, 2022, Petitioners also moved pursuant to CPLR 306-b for an extension of time to serve the Notice of Petition and Petition as nun pro tunc. “An article 78 proceeding must be brought ‘within four months after the determination to be reviewed becomes final and binding upon the petitioner’ ” (Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005] quoting CPLR 217 [1]). Petitioners challenge of the environmental review under SEQRA was required to be commenced within four months of the final determination (see Matter of Sanitation Garage Brooklyn Dists. 3 & 3A, 32 AD3d 1031, 1035 [2006]; Matter of Throggs Neck Resident Council v. Cahill, 290 AD2d 324, 324 [2002]). Here, the final determination occurred on November 23, 2021 when the Uniform Land Use Review Procedure (ULURP) concluded with the City Council’s approval of the Rezoning (see Matter of Rimler v. City of New York, 172 AD3d 868 [2d Dept. 2019]; Matter of Sanitation Garage Brooklyn Dists. 3 & 3A, 32 AD3d at 1035-1036; Matter of Throggs Neck Resident Council v. Cahill, 290 AD2d at 324). Accordingly, the four-month statute of limitations began to run on that date and expired on March 23, 2022. Pursuant to CPLR 306-b, in actions governed by a four-month statute of limitations, service must be made no later than fifteen days after the expiration of the statute of limitations (see CPLR 306-b). Here, Petitioners timely filed their Petition on February 28, 2022, and had until April 7, 2022, to serve Respondents. However, Petitioners did not serve the Petition until April 26, 2022, nineteen days after the expiration of the CPLR 306-b extended service period. Petitioners do not dispute this fact and request that the court, in its discretion, grant an extension of time to serve past the statute of limitations. Pursuant to CPLR 306-b the court may grant permission to serve after the expiration of the statute of limitations “upon good cause shown or in the interest of justice.” “‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards’ (BAC Home Loans Servicing, L.P. v. Rogener, 171 AD3d 996, 998 [internal citations omitted]). “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept. 2009] [internal citations omitted]; Wells Fargo Bank, N.A. v. Kaul, 180 AD3d 956, 958 [2d Dept. 2020]). “Good cause will not exist where a plaintiff fails to make any effort at service or fails to make at least a reasonably diligent effort at service” (Bumpus v. New York City Tr. Auth., 66 AD3d at 32 [internal citations omitted]). In contrast, a reasonably diligent effort at service is not required to meet the much broader “interest of justice” standard wherein a court considers other factors including “the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant” (Bumpus v. New York City Tr. Auth., 66 AD3d at 32 [internal citations omitted]). Petitioners failed to meet the “good cause shown” standard as there was no legal barrier to effectuate timely service. Petitioners argue that the CPLR requires that service of a notice of petition made returnable must include a date, time and place. Petitioners acknowledge that service was not effectuated until April 26, 2022, but argue that it was “both reasonable and good practice” to wait for a judge to be assigned before attempting service. However, failure to designate a return date on a notice of petition does not constitute a substantial defect which deprives the court of jurisdiction (Matter of Garth v. Board of Assessment Review for Town of Richmond, 13 NY3d 176 [2009]; see also Matter of Great E. Mall v. Condon, 36 NY2d 544 [1975]). It has for some time been the rule to regard such a defect as a technical irregularity: “CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable. We now hold that the omission of a return date in a notice of petition does not constitute a jurisdictional defect so as to deprive the court from assessing whether such omission may be excused under CPLR 2001, and our prior decisions stating to the contrary should no longer be followed for such proposition” (Oneida Public Library Dist. v. Town Bd. of Town of Verona, 153 AD3d 127, 129-130 [3d Dept. 2017] [internal citations omitted] [emphasis added]). Petitioners themselves acknowledge this rule and cite to the 2009 Court of Appeals case, Matter of Garth v. Board of Assessment Review for Town of Richmond in support of their statement: “[o]ther courts have determined that leaving the date and time blank is not a jurisdiction defect that requires a dismissal of their proceeding.” Petitioners cite to cases that pre-date Matter of Garth v. Board of Assessment Review for Town of Richmond by over a decade and rely on an outdated 1993 third edition of Professor David Siegel’s treatise New York Practice. However, Petitioners’ quotation of the 1993 edition of Siegel’s treatise explicitly states that practicing attorneys should not assume that courts will extend the time to serve: “If delays occasioned by the court or clerk hold up the service of the papers, we think the time for service should be extended accordingly, but until the point is decided — in someone else’s case — don’t assume that it is” (emphasis added). Further, the 2021 sixth edition of New York Practice provides updated information with regards to this issue: “We stress once again that in the common practice of preparing a notice of petition, the lawyer may encounter difficulty in setting a return day because it is likely at this early stage that no judge has yet been assigned to the case. That, indeed, is the reason why the petitioner must file an RJI with the petition itself. Without having an assigned judge, it’s often impossible to set a “firm” return day in the notice of petition since the actual day of the hearing will largely depend on the judge’s own calendar. The Court of Appeals has held in this regard that all the petitioner need do — as long as the initial filing is timely — is fix a return date in the notice of petition that satisfies applicable notice requirements. Later changes in the return date, such as those made by the judge, will then not invalidate the proceeding (citing National Gypsum Co. Inc. v. Assessor of Town of Tonawanda, 797 N.Y.S.2d 809, [2005]). Even with that high-court assurance, the petitioner may feel more comfortable checking with the clerk of the particular county to ask how things are done locally” (Siegal, NY Prac. §553 [6th ed. June 2022]). Notwithstanding the fact that there was no legal barrier, the information regarding the judicial assignment was available to Petitioners as early as the date they e-filed the Notice of Petition and Petition. The New York State Court E-filing system designated “Kings Cdp25″ next to “Assigned Judge.” As Respondents point out, a rudimentary Google search dated May 17, 2022, attached to Respondents’ opposition papers, revealed the name of the judge assigned to Kings Cdp25.1 Respondents also attach internal City Law Department email correspondences which indicate that on March 16, 2022, three weeks prior to the service deadline, Respondents’ attorney confirmed the name of the assigned judge to Petitioners’ counsel by phone. If Petitioners still had any doubts regarding the assigned judge, they failed to show any diligent efforts to contact the county clerk and verify the name of the judge in order to effectuate timely service of the Notice of Petition and Petition. In fact, Petitioners state that they served the Notice of Petition seven days after they learned that a judge was assigned. Further, Petitioners did not move for an extension of time to serve prior to expiration of the statute of limitations, but instead cross-moved for an extension in response to Respondents’ motion to dismiss. Accordingly, Petitioners failed to establish “good cause shown” for their failure to effectuate timely service. In the alternative, Petitioners argue that an extension is warranted “in the interest of justice.” This is separate and distinct from the “good cause shown” standard and wherein lack of reasonable efforts to effectuate service is not a determinative factor: “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (Leader v. Maroney, Pozini & Spencer, 97 NY2d 95, 105-106 [2001]). “‘A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court’ ” (Matter of Rimler v. City of New York, 172 AD3d at 870-871 citing Bank United, FSB v. Verbitsky, 167 AD3d 833, 835 [2018], quoting Siragusa v. D’Esposito, 116 AD3d 837, 837 [2014]). Petitioners’ failure to make reasonable efforts to effectuate timely service is not a threshold matter in an interest of justice analysis. However, in weighing all relevant factors, the court finds that Petitioners have failed to establish that an extension of time to serve is warranted in the interest of justice. Petitioners’ argument that the nineteen-day delay of service is not prejudicial or adverse to Respondents’ ability to defend the proceeding is unavailing. Petitioners cite to case law where extensions were granted for greater delays in service, however none of these cases were brought by an Article 78 proceeding where the service period is fifteen days as opposed to one hundred and twenty days. The abridged fifteen-day service period reflects the legislative intent to resolve actions challenging government actions expeditiously: “An article 78 proceeding must be brought ‘within four months after the determination to be reviewed becomes final and binding upon the petitioner’ (CPLR 217 [1]). A strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potential litigation” (Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom of City of NY, 5 NY3d 30, 34 [2005] [internal citations omitted]). ” ‘The reason for the short statute is the strong policy, vital to the conduct of certain kinds of governmental affairs, that the operation of government not be trammeled by stale litigation and stale determinations’ ” (Solnick v. Whalen, 49 NY2d 224, 232 [1980] quoting Mundy v. Nassau County Civ. Serv. Comm., 44 NY2d 352, 359 [1978]). Here Petitioners did not complete service until nineteen days after the expiration of the fifteen-day time extension under CPLR 306-b resulting in a substantial thirty-four-day delay. This delay is highly prejudicial in the context of an Article 78 proceeding where the “potential for litigation” alone restricts the government from conducting its affairs (Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom of City of NY, 5 NY3d 30). Contrary to Petitioners’ assertion, the prejudice herein is not merely a matter of Respondents’ ability to defend this action. Here, the “potential for litigation” is highly prejudicial in light of Respondents’ considerable investment of time and resources, including its extensive environmental review under SEQRA to undertake this project. Accordingly, the interests of justice would not be served in granting Petitioners’ relief to pursue their cause of action despite their substantial and unexcused delay in service. Petitioners argue that dismissal of their action after the expiration of the statute of limitations would be highly prejudicial and prevent their claims from being decided on the merits. However, Petitioners have failed to establish the meritorious nature of their action. The Gowanus Neighborhood Rezoning is the product of over eight years of collaboration and engagement between various New York City agencies, including the Department of City Planning (DCP) and local residents, businesses and elected officials. The project consists of a set of land use actions including amendments to the zoning map, zoning text, City Map and the disposition of City-owned property in order to construct over 8,500 new residential units-including 3,000 affordable housing units for low-income households, public open space including over an acre of new park land, over 772,000 square feet of commercial space and 251,000 square feet of community facility space including a new 500-seat public school. The Rezoning project is also expected to generate privately funded remediation of contaminated properties under the supervision of relevant City and State regulators in order to rehabilitate the neighborhood and improve public health. The Rezoning included several discretionary land use actions, and was therefore subject to extensive public review under the ULURP as mandated by the City Charter §§197-c and 197-d. The Rezoning received wide-ranging public support from Brooklyn Community Board 6, the Brooklyn Borough President and the New York City Council which approved the Rezoning by a 47-1 vote on November 23, 2021. Through execution of a Points of Agreement Memorandum, the Office of the Mayor and the City Council committed to spend $450 million on capital improvements to the Rezoning and nearby areas for sewage system upgrades, the development of waterfront public space, modernization of public housing and similar such projects. Acting through the DCP, the New York City Planning Commission (“CPC”), the lead agency designated under SEQRA and its city counterpart, the City Environmental Quality Review (CEQR), analyzed the potential environmental impacts of the Rezoning in a 1,345-page Final Environmental Impact Statement (FEIS). The DCP issued a Notice of Completion for the FEIS on September 10, 2021. In their Petition, Petitioners seek, inter alia, an injunction to prevent Respondents from going forward with the Rezoning based on allegations that Respondents violated various state and federal laws, including its obligations to draft an EIS in compliance with SEQRA. The court emphasizes the rigorous review process an agency must undergo to draft an EIS in compliance with SEQRA: “SEQRA makes environmental protection a concern of every agency (ECL 8-0103 [8]; 6 NYCRR 617.1 [b]). In proposing action, an agency must give consideration not only to social and economic factors, but also to protection and enhancement of the environment (ECL 8-0103 [7]; see,6 NYCRR 617.1 [d]). SEQRA insures that agency decision-makers — enlightened by public comment where appropriate — will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices Moreover, unlike its Federal counterpart and model, the National Environmental Policy Act (NEPA) (42 USC §§4321-4361)(see, Aldrich v. Pattison,107 AD2d 258, 265;Coalition Against Lincoln W. v. City of New York,94 AD2d 483, 485,affd60 NY2d 805), SEQRA is not merely a disclosure statute; it “imposes far more ‘action-forcing’ or ‘substantive’ requirements on state and local decision makers than NEPA imposes on their federal counterparts” (Gitlen, Substantive Impact of the SEQRA,46 Alb L Rev 1241, 1248). The heart of SEQRA is the Environmental Impact Statement (EIS) process (Matter of Town of Henrietta v. Department of Envtl. Conservation, 76 AD2d 215, 220). Under the act, an EIS must be prepared regarding any action that “may have a significant effect on the environment” (ECL 8-0109 [2]), and the Department of Environmental Conservation has adopted regulations governing the process (see,6 NYCRR 617.11-617.13). SEQRA prescribes both the procedure for formulating an EIS and its content” (Jackson v. NY State Urban Development Corp., 67 NY2d 400, 414-415 [1986]). In an Article 78 proceeding, the court may not substitute its own judgment for that of an agency: “It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232 [2007]). This standard applies to an agency’s environmental review under SEQRA: “Judicial review of SEQRA findings ‘is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ (Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan, 30 NY3d 416, 430 [2017] [internal quotation marks omitted]). “The relevant question before the court is whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” (Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 688 [1996] [internal quotation marks omitted]; see Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan, 30 NY3d at 430) (Matter of Rimler v. City of New York, 172 AD3d at 871). Petitioners claim that the FEIS failed to meet SEQRA requirements to adequately address the impact of excessive solid waste discharge into the Canal, in particular the impacts to affected sewersheds and increase combined sewer overflow (CSO) discharges to the Canal.2 Petitioners proceed to explain the agency requirements under the SEQRA Handbook and claim Respondents failed apply “the hard look standard” to identify and analyze a list of areas of environmental concern. However, Petitioners either fail to point to any specific shortcomings in the FEIS or support these shortcomings with any substantive evidence other than their own opinions. Petitioners cannot satisfy their burden to establish the merits of their claims with conclusory and unsupported allegations or substitute their own judgment or the “generalized community objections” for that of an expert agency (Vesey v. Rezoning Bd. of Appeals, 154 AD2d 819, 821 [3d Dept. 1989]; Bahadur v. New York State Dept. of Corrections, 88 AD3d 629, 630 [2d Dept. 2011]; WEOK Broadcasting Corp. v. Planning Bd. of Lloyd, 79 NY2d 373, 385 [1992]). Further, ” ‘[n]ot every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA” (Matter of Northern Manhattan is Not for Sale v. City of NY, 185 AD3d 515, 517-518 [1st Dept. 2020] quoting Aldrich v. Pattison, 107 AD2d 258, 266 [2d Dept 1985]). Petitioners fail to attach any letters or opinions which they claim were critical of the FEIS. The only document Petitioners attach in support of their claims is an undated comment letter from EPA Region 2 Superfund and Emergency Response Division Chief Doug Garbani. However, the subject of the letter explicitly states: “Re: Comments on Gowanus Neighborhood Rezoning Draft Environmental Impact Statement” (emphasis added). Therefore, all EPA concerns expressed therein clearly predate the analysis and findings of the FEIS. Furthermore, this comment letter written in response to the DEIS demonstrates that DCP involved the EPA throughout the review process in compliance with SEQRA: “ Whenever it is determined that a proposed ‘action’ may have a significant effect on the environment, a DEIS is required to be prepared and various other procedural steps are to be taken including soliciting comments on the DEIS” (WEOK Broadcasting Corp. v. Planning Bd. of Lloyd, 79 NY2d at 381). This also contradicts Petitioners’ claim that Respondents failed to comply with SEQRA’s requirement to notify various involved agencies, including the EPA, “so as to provide appropriate input and comments” regarding the EIS and “any effects of the Proposed Action on their respective interests or approval authority.” Petitioners’ claim that Respondents failed to adequately address the EPA concerns regarding CSO discharges is unsupported by the 1,345-page FEIS. In accordance with the CEQR Technical Manual which governs the City’s environmental review, the FEIS contains an analysis of nineteen separate impact categories, including as relevant herein, the impact of Rezoning on the sewer system and CSO discharges into the Gowanus Canal. DCP designated an entire chapter with an appendix for the study of the Rezoning’s impact of the sewer system and CSO discharge to the Gowanus Canal. Contrary to Petitioners’ assertions, the study concluded that there would be no significant adverse impact on wastewater treatment capacity, stormwater management and sanitary sewer infrastructure or the City’s ability to meet its obligations under the EPA Superfund requirements. The study concluded that the Rezoning would actually decrease volumes of CSO as a result of the additional development of on-site stormwater management needed to meet the Unified Stormwater Rule requirements: “The analysis found that, under the With Action condition, with the additional development facilitated by the Proposed Actions, CSO volumes would decrease as compared with the No Action condition despite the increase to sanitary flows from new development. This reduction in CSO volumes is a result of the new on-site stormwater management volume requirements under the Unified Stormwater Rule, which increases the total volume of water that must be managed on new and redeveloped properties as well as updates the type and performance of on-site stormwater management practices that must be implemented. In the Project Area, the Unified Stormwater Rule ensures that redeveloped properties manage more total stormwater and manage it more efficiently than prior to redevelopment. This improved on-site stormwater management on the redeveloped properties is substantial enough that it would offset the increase in sanitary flow, so CSO volumes to the Canal would decrease overall. While the Proposed Actions are anticipated to add approximately 18,000 new residents to the Project Area on 63 projected development sites, generating additional sanitary flow of 1.29 mgd (see Chapter 11, “Water and Sewer Infrastructure,” for details analysis methodology), the vast majority of this additional flow would be conveyed to the WRRF for treatment, with the exception of during more intense wet weather events. The Unified Stormwater Rule benefits in the Project Area more than offset the increase in sanitary flows and, even with the increased population and sanitary flow, would result in approximately 5 million gallons per year of CSO reduction to the Gowanus Canal. In addition, in the With Action condition, CSO volumes discharged to the Canal would remain well below existing conditions, and the Proposed Actions would not affect the City’s ability to meet the EPA Superfund requirements ” (Resp. Exh. A. FEIS Executive Summary, S-66 [emphasis added]). Petitioners’ remaining claims that Respondents violated various state and federal laws lack merit. The local land use actions undertaken by the Rezoning do not involve federal funds or federal approvals and are therefore not subject to analysis under National Environmental Policy Act (“NEPA”), regardless of the prospect of future federal funding (40 C.F.R. §1508.18; Atlanta Coal. On Transp. Crisis, Inc., v. Atlanta Reg’l Com., 599 F.2d 1333, 1347 [5th Cir. 1975] ["it has been consistently held that the possibility of federal funding in the future for a project or group of projects does not make that project or projects 'major federal action' during the planning stage."]). For the same reason, the National Historic Preservation Act also does not apply as the Rezoning sought no federal funding or approvals (54 U.S.C. §306108). Similarly, the New York Parks, Recreation and Historic Preservation Act is also inapplicable as it only pertains to actions undertaken, funded or subject to approval by a state agency which is not the case herein (PRHPL §14.09). Finally, Petitioners’ claim that Respondents did not comply with SEQRA for their failure to notify a list of state and federal agencies as “involved agencies” including the Department of Environmental Protection (“DEC”) is without merit. DEC is not an “involved agency” as it had no approval authority in the Rezoning (see Matter of Scenic Hudson v. Town of Fishkill Town Bd., 266 AD2d 462, 464 [2d Dept. 1999]; Hells Kitchen Neighborhood Assn. v. City of NY, 81 AD3d 460 [1st Dept. 2011]). As discussed above, Petitioners’ own moving papers and exhibit, support a finding that Respondents made diligent efforts to identify and engage with involved agencies as demonstrated by the EPA comment letter in response to the DEIS and the impact of the Rezoning. Even if there was a failure to identify an agency, courts have deemed such omissions as inconsequential (Matter of Cade v. Stapf, 91 AD3d 1229 [3d Dept. 2012]; Matter of Scenic Hudson v. Town of Fishkill Town Bd., 266 AD2d 462). This is especially true in light of the fact that the FEIS, written in compliance with the CEQR Technical Manual, concluded that the Rezoning would not result in significant adverse environmental impact (see also Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d at 235 ["Provided that a lead agency sufficiently considers the environmental concerns addressed by particular permits, the lead agency need not await another agency's permitting decision before exercising its independent judgment on that issue."]). Based on the foregoing, the court finds that Petitioners failed to present any factual or legal arguments to support the merits of their claim that Respondents’ environmental review was capricious, an abuse of discretion or affected by an error of law. Respondents reasonably concluded that the Rezoning would not result in any major adverse environmental impact based on its comprehensive and thorough review undertaken under the CEQR Technical Manual guidelines in compliance with SEQRA. Respondents also established that Petitioners failed to timely serve their Petition within the Statute of Limitations. Petitioners failed to show good cause for the delay in service or sufficient merit to this proceeding to warrant an extension of time to serve in the interest of justice under CPLR 306-b. Accordingly, Respondents’ Motion to Dismiss the Verified Petition is GRANTED. Petitioners’ Cross-Motion to Extend the Time to Serve is DENIED. The Petition is hereby dismissed with prejudice. This constitutes the Decision and Order of the Court. Dated: June 27, 2022
