Chester Civic Improvement Ass'n v. New York City Transit Authority , 505 N.Y.S.2d 638 ( 1986 )

— Order of the Supreme Court, Bronx County (Barry Salman, J.), entered on December 20, 1985, which, inter alia, denied plaintiffs’ motion to serve and file an amended complaint, is modified, on the law, the facts and in the exercise of discretion, solely to grant plaintiffs’ motion for leave to serve the proposed amended complaint as to the first two causes of action, and otherwise affirmed, without costs.

Plaintiffs are a civic association and its president, both located in the northeast Bronx. In 1981, the City Planning Commission approved a bus depot planned by defendant Transit Authority in that area. In that year, over stiff opposition, the Board of Estimate also approved the selection and acquisition of the site. A prior challenge to this action was dismissed in the Supreme Court and that dismissal was affirmed by this court. (Matter of Chester Civic Improvement Assn. v Board of Estimate, 97 AD2d 986, lv denied 62 NY2d 601, rearg dismissed as untimely 63 NY2d 771.) Thereafter, the defendant Authority took title to the lots through purchase and condemnation by the city and lease agreements between the city and the Metropolitan Transportation Authority.

The plaintiffs then brought the instant action seeking a permanent injunction. The complaint alleged that certain stream beds had not been transferred to the city by the State and that the construction of a Waldbaum’s Supermarket near the site required a new environmental impact evaluation. A motion for a temporary injunction against the construction of the depot was denied at that time. Subsequently, the Board of Estimate on October 10, 1985 adopted a resolution withdrawing its approval of the project. The plaintiffs then moved to amend their complaint and for preliminary injunctive relief.

In the first cause of action of the proposed amended complaint, plaintiffs claim the construction of the supermarket would create a negative environmental impact. The second cause of action asserts that due to the Board of Estimate’s withdrawal resolution of 1985, construction of the depot was illegal. The third cause of action seeks to compel the city and the Corporation Counsel to join the action as party plaintiffs and the fourth cause of action seeks reasonable attorney’s fees inasmuch as the plaintiffs were allegedly compelled to act as private attorneys-general in this action.

The Supreme Court found the asserted third and fourth causes of action not viable because the city and Corporation Counsel could not be compelled to act as plaintiffs where there is no violation of a mandatory public duty and since they have discretion as to whether to participate in such an action. The court also denied plaintiffs’ application for a preliminary injunction, finding they lacked standing under the State Finance Law to compel a State agency to perform acts or to enforce the resolution of the Board (i.e., the basis of the second cause of action of the proposed amended complaint) and, accordingly, it denied plaintiffs leave to serve the amended complaint.

While we agree with the denial of the application for a preliminary injunction, we do so for reasons different than those stated by Special Term. Although the court reasoned that plaintiffs did not qualify for standing since, pursuant to State Finance Law article 7-A, actions are reserved to citizen-taxpayers and concern the disbursement and expenditure of State funds or State property, the individual plaintiff herein apparently qualifies as a citizen-taxpayer. This action involves to some degree the disposition of city or State property. Plaintiffs represent the neighborhood’s real and substantial interest in the construction of this bus depot. In addition, plaintiffs have established the potential harm to them of the possible negative environmental impact of the project. As the Court of Appeals has recently stated: "[T]he contemporary rule is that a party has standing to enforce a statutory right if its abuse will cause him injury and it may fall within the 'zone of interest’ protected by the legislation (Fritz v Huntington Hosp., 39 NY2d 339, 346). As we have had occasion to observe in recent years, '[o]nly where there is a clear legislative intent negating review * * * or lack of injury in fact * * * will standing be denied’ (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 11).” (Matter of District Attorney of Suffolk County, 58 NY2d 436, 442.)

Nevertheless, having conceded the standing of plaintiffs, we would deny their application for preliminary injunctive relief on the grounds that they have failed to establish a clear likelihood of their success on the merits. Although not requiring conclusive proof, an injunction is a drastic remedy and plaintiffs should show the likelihood of ultimate success on the merits, irreparable injury absent the grant and a balancing of the equities in their favor. (See, Sachellaridou v Pasent Realty Co., 104 AD2d 764, 765.) Thus, while plaintiffs arguably may be said to have established irreparable injury, there is a very real question, inter alia, as to whether the Board of Estimate, in rescinding its prior approval of the project, acted in a manner contrary to the constitutional ban on impairment of contracts. (See, Fletcher v Peck, 6 Cranch [10 US] 87, 135.)

Since Special Term incorrectly denied leave to plaintiffs to add the second cause of action based upon the withdrawal resolution of the Board of Estimate on the ground of lack of standing, the order appealed from should be modified solely to grant plaintiffs’ motion for leave to serve the proposed amended complaint as to the first two causes of action. Concur —Ross, Asch and Ellerin, JJ.