The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR. DECISION + ORDER ON MOTION Petitioner brings the instant petition pursuant to CPLR §7803, alleging that respondents’ were arbitrary and capricious in approving the MTA Controlled Pedestrian Access Zone Logistics Plan dated April 8, 2022 (the “Protection Plan,”) for the premises located at One Times Square, NY, NY. For the reasons set forth below, the petition is denied1. Petitioner contends that the respondents’ approval of the subject protection plan, will create a dangerous condition on the sidewalk that abuts its premises, 4 Times Square. Respondents oppose the instant petition. Facts In March and May 2022, DOB issued several permits allowing non-party to this proceeding, Jamestown OTS, LP (“the developer”), to perform work on their property located at One Times Square, New York, New York. The proposed work includes, a gut renovation, adding a vertical enlargement to the top of the preexisting 22-story building to make it a 25-story building, adding a new curtain wall system and facade reclad, and adding an exterior elevator to the outside of the building. According to the diagram in the protection plan, the sidewalk shed would be constructed on “Broadway Plaza,” adjacent to the construction work being done at the subject building at One Times Square, and adjacent to petitioner’s property at 4 Times Square. The protection plan requires a sidewalk shed of approximately twenty (20) feet in width to be constructed on the North, West, and South sides of One Times Square — along 43rd Street, Seventh Avenue, and 42nd Street, respectively. Beyond the work zone and beginning approximately sixty feet from the ground level facade of One Times Square on Broadway, the protection plan requires the construction of a sidewalk shed over the remaining third of Broadway and the entirety of the pedestrian sidewalk adjacent to the petitioner’s premises. Standard of Review In an Article 78 proceeding, the scope of judicial review is limited to whether a governmental agency’s determination was made in violation of lawful procedures, whether it was arbitrary or capricious, or whether it was affected by an error of law (see CPLR §7803[3]; Matter of Pell v. Board of Educ., 34 NY2d 222, 230 [1974]; Scherbyn v. BOCES, 77 NY2d 753, 757-758 [1991]). A determination subject to review under Article 78 exists when, first, the agency “reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be significantly ameliorated by further administrative action or by steps available to the complaining party” (Walton v. New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]). Article 78 review is permitted, where it is alleged a determination was made “in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion….” CPLR §7803(3). “It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law.” Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] (citing YMCA v. Rochester Pure Waters Dist., 37 NY2d 371, 375 [1975]); see also CPLR §7801(1). It is well settled that a failure to timely exhaust administrative remedies precludes judicial review. Rodriquez v. City of N.Y., 55 AD2d 532, 533 [1st Dept 1976] (“Petitioner cannot now be permitted to undo by court action that which he could have accomplished had he pursued his administrative remedies”); Matter of Contest Promotions-NY LLC v. NY City Dept. of Bldgs., 93 AD3d 436, 437 [1st Dept 2012]. Discussion It is undisputed that the New York City Board of Standards and Appeals (“BSA”) has jurisdiction to hear appeals regarding DOB work permits and other DOB final determinations. Petitioner submitted its appeals request to BSA on July 22, 2022. On July 26, 2022, BSA responded that BSA did not have jurisdiction as “there is not final determination within the meaning of the BSA Rules of Practice and Procedure”. See NYSCEF Doc. 41. Petitioner contends that it did in fact exhaust its administrative remedies and if the Court determined it had not that it should be excused because further administrative remedies would be futile. The Court does not agree. Contrary to petitioner’s contention, it failed to timely appeal to the BSA regarding the approval of the plan dated April 8, 2022. Pursuant to the Administrative Code, petitioner had 30 days to seek an appeal from the date of the final determination, which based on the record before the Court was April 8, 2022, when the protection plan was approved. Petitioner fails to address how its untimely application was not fatal. DOB contends, and this Court, agrees that petitioner has failed to exhaust its administrative remedies and as such the Court need not reach respondents’ remaining arguments in opposition to the instant petition. Even assuming arguendo that this Court were to find that additional administrative remedies would be futile, petitioner has simply failed to establish its prima facie entitlement to the relief sought. Preliminarily, the Court notes that the subject sidewalk shed that is being constructed pursuant to the protection plan does not abut petitioner’s property. Petitioner’s assertion of safety concerns and congestion are all speculative and not supported by any admissible evidence. In contrast, respondents have affirmatively established, through the affidavit of its Chief Plan Examiner for the Site Safety Plan Examination unit, that the protection plan is necessary, consistent with the applicable building codes and “failure to construct a sidewalk shed for this proposed work would create a very real and very dangerous public safety hazard of falling debris.” See NYSCEF Doc. 10. Moreover, petitioner’s argument that Building Code §3307 limits sidewalk sheds is unavailing; rather that statute dictates when sidewalk sheds are affirmatively required. Contrary to petitioner’s contentions, the statute does not restrict the issuances of permits that impose regulations beyond the requirement. To read it as petitioner contends would hamstring DOB in its case by case evaluation to protect the public from falling debris and other potential hazards. In addition, the Court need not even reach this issue because the shed would about the staging area of the One Times Square building. Finally, the Court finds unavailing petitioner’s argument that case law mandates a finding for petitioner as the instant project is identical to a recent construction project at the same location, as the petitioner has failed to meet their burden that the projects are virtually identical. Moreover, the Court finds it highly unlikely that respondent could meet their burden due to the complexity of the One Times Square project, as discussed above.2 Accordingly, it is hereby ADJUDGED that the petition is denied. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 11, 2022
