SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 11 ------------------------------------------ X In the Matter of the

Application of JOSEPH ARDIZZONE, BEST FUTURE LAND, LLC, BONO REALTY CORP. A/K/A BONO REALTY COMPANY, BONO SAWDUST SUPPLY CO. INC., PETTRINA CARELLA, CHAMP'S AUTO TECH, INC., CYPRIAN TRUCK & AUTO REPAIRS INC. D/B/A SHEA TRUCK & AUTO REPAIR INC., CROWN CONTAINER CO., INC., 34TH AVENUE REALTY LLC, 126TH PLACE REALTY LLC, EMPIRE COMMERCIAL CORP., MIN JIAN REALTY, LLC, N. & T. REPAIRS INC., NEW YORK 128 REALTY CORP., S.A.K. REALTY GROUP LLC, JANICE SERRONE, SHEA BUILDING CORP., SIJ, INC., ST. JOHN ENTERPRISES, INC., TIE WANG INC. D/B/A IRON KING, TJ GROUP, INC., UNITED STEEL PRODUCTS, INC., FRED & LOU HOLDING CO., LLC, W. LETELLIER, LLC, WILLETS POINT UNITED AGAINST EMINENT DOMAIN, Petitioners/Plaintiffs, -againstMICHAEL BLOOMBERG, as Mayor of the City of New York, CITY OF NEW YORK, CITY COUNCIL OF THE CITY OF NEW YORK, CITY PLANNING COMMISSION OF THE CITY OF NEW YORK, ROBERT C. LIEBER as Deputy Mayor for Economic Development and Rebuilding, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, Respondents/Defendants. -------------------------------------------X JOAN A. MADDEN, J.:

Index No. 103406/09 INTERIM DECISION AND ORDER

Petitioners move for an order pursuant to CPLR 5015 vacating the prior decision and order of this court dated August 16, 2010, and upon vacatur, permitting supplemental briefing and reargument in light of recent developments and newly discovered

evidence.

The prior decision and order dismissed petitioners Article 78 proceeding challenging a proposed project to develop the Willets Point section of Queens, New York, under the New York State Environmental Quality Act (SEQRA) and the New York City Environmental Review (CEQR). Petitioners specifically challenged the sufficiency of the Final Generic Environmental Impact Statement (FGEIS) assessing the proposed project. The FGEIS analyzed the project as a

single project encompassing the 61-acre area of Willets Point. As part of the project, new ramps on the neighboring Van Wick Expressway were planned, in order to deal with the increased vehicular traffic resulting from the development of Willets Point. It was clear from the project proposal, and from the

FGEIS, that the ramps were considered an essential part of the project. As noted in the prior decision, the FGEIS at 29-9, Response 10 stated that the proposed ramps are an integral part of the plan because they would make traffic flow to and from the District much more efficient and reduce demand and congestion on local streets. Moreover, the FGEIS assumed the ramps would be

built, and at oral argument, the City represented that if the ramps are not approved, the City could not go forward with the

plan as conceived.

Also, in dismissing petitioners Article 78

proceeding, this court stated that if the planned ramps were not

approved by the relevant federal and state agencies, additional environmental review would be required. Although the City has been able to acquire much of the land within the project area, some landowners have been unwilling to sell their property to the City, thus necessitating the use of eminent domain to go forward with the project. At several

points during the original Article 78 proceeding, the City assured petitioners and the court that it would not go forward with its exercise of the power of eminent domain until approval for the ramps had been obtained. See Affidavit of Robert C.

Lieber, Deputy Mayor for Economic Development and Rebuilding, dated June 29, 2009, 20, and Affidavit of Thomas McKnight, senior vice president of the New York City Economic Development Corporation, dated June 29, 2009, 89 & 100, both affidavits are annexed to Affidavit of Michael Gerrard, Ex. D and the Lieber affidavit is cited in Respondents/Defendants Memorandum of Law in Support of their Verified Answer to the PetitionComplaint (Respondents Memo), at 6. Now, the City has decided

to carry out the project in stages, and to utilize its eminent domain power and proceed with a portion of the project, although it has not yet obtained

approval of the ramps.1

The City contends that it has done the

necessary environmental review in connection with those proceedings by means of a Technical Memorandum for the Willets Point Development Plan FGEIS, dated February 10, 2011 (Technical Memorandum). The Technical Memorandum concludes that proceeding

with Stage 1 of the project, even before the ramps are approved and in place, will have no significant impacts on the environment that were not predicted in the FGEIS. Petitioners contend that proceeding with the project in stages, when the potential environmental impacts were only examined if the project were carried out as a whole, constitutes improper segmentation. They further contend that the Technical

Memorandum does not adequately examine the possible environmental impacts of proceeding with the newly defined stage 1 of the project, without the issue of the ramps being resolved. Petitioners contend that the Citys decision to move forward with eminent domain proceedings, despite their prior assurance to the court that they would not do so until the issue of the

ramps had been resolved, justifies exercise by the court of its inherent power, and its authority under CPLR 5015 to vacate 1On page 4 of Respondents Memorandum of Law in Opposition to The Motion to Vacate Pursuant to CPLR 5015, the City contends that it has not yet sought to acquire title to any properties pursuant to the Eminent Domain Procedure Law (EDPL); however, this would appear to be primarily a matter of semantics, since it is undisputed that the City conducted a public hearing on March 2, 2011 and accepted written comments from March 2, 2011 - March 18, 2011, with respect to its intention to acquire property in the Willets Point area pursuant to the EDPL.

its prior judgment dismissing the Article 78 proceeding. Petitioners

further contend that upon vacatur, the court should direct the City to conduct a Supplemental Environmental Impact Statement (SEIS). As discussed below, a court has inherent power to vacate its judgments. CPLR 5015 (a) codifies the principal grounds

upon which courts have vacated judgments, including excusable default; newly discovered evidence; fraud, misrepresentation or misconduct; lack of jurisdiction; or upon reversal, modification or vacatur of a prior order. 100 NY2d 62, 68(2003). of Woodson v Mendon Leasing Corp.,

Petitioners argue that the Citys change

position with respect to proceeding without approval for the

ramps, is, under CPLR 5015(a)(2) and (3) respectively, either newly discovered evidence or a misrepresentation. Pursuant to CPLR 5015, a court may vacate its own judgment where there exists newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404. (2). CPLR 5015(a)

Citing Stanski v Ezersky, 250 AD2d 422, 422-423 (1st Dept

1998), Matter of Ayodele Ademoli J., 57 AD3d 668, 669 (2nd Dept 2008) and others, the City argues that its decision to now

approach the Willets Point project in stages does not constitute newly-discovered evidence, because that evidence actually did not

exist at the time petitioners Article 78 proceeding was decided by this court. Therefore, according to the City, this court is The City contends

without the power to vacate its judgment. that if petitioners wish to challenge its

decision to proceed with

the project in stages, they can do so in their challenge to the condemnation proceeding which they initiated in the Appellate Division, Second Department,2 or they can file a new Article 78 proceeding challenging the decision of the City to use a staged approach to the project and the adequacy of the Technical Memorandum. In response, petitioners cite Schwartz v Tessler, 131 AD2d 335 (1st Dept 1987) and National Hotel Mgt. Corp. v Shelton Towers Assoc., 111 AD2d 154 (2nd Dept 1985), arguing that in these cases motions to vacate were granted pursuant to CPLR 5015, based upon evidence which did not exist at the time the earlier judgments were entered. However, in Schwartz, a medical

malpractice action, at issue was medical evidence discovered 2The eminent domain proceeding, Matter of Serrone v. City of York, Docket No. 201105147, will apparently be fully submitted to the Appellate Division, Second Department sometime later this month, December 2011, without oral argument.

during a second surgery after trial.

According to the plaintiff

in that case, this evidence pointed to perforation during the first surgery as the cause of his condition as he had asserted at

trial, and not, as asserted by the defendant, age-related disease. Thus, contrary to petitioners argument, the medical

evidence of perforation existed at the time of trial, but was not discovered until the second surgery. National Hotel Mgt. Corp.

is distinguishable on its facts, as vacatur was based on egregious inconsistencies between sworn statements at trial and at depositions in another action with respect to the nature of certain stock transfers; circumstances which do not exist here. Moreover, in a recent decision the First Department

clearly states that [e]vidence only qualifies as newlydiscovered if it was in existence at the time of the original order or judgment, but was undiscoverable with due diligence. Coastal Sheet Metal Corp. v RJR Mechanical Inc., 85 AD3d 420, 421 (1st Dept 2011); see also Matter of Ayodele Ademoli J., 57 AD3d 668, 669 (2d Dept. 2008). Based on the foregoing, I

conclude that since the City changed its approach to the Willets Point project after dismissal of the Article 78 proceeding, it cannot be said that the change constitutes newly discovered

evidence. Nor does petitioners contention that the City made misrepresentations that it would not go forward without approval of the ramps provide a grounds for vacatur. There is no

evidence that at the time these representations were made, the City did not intend to fulfill this commitment.

However, I reach a different conclusion based on a courts discretionary power to vacate its own judgments for sufficient reason [and] in the furtherance of justice...[This] power... does not depend upon any statute, but is inherent. Ladd v Stevenson, 112 NY 325,332 (1889); accord Goldman v Cotter, 10 AD3d 289, 293 (1st Dept 2004), quoting Woodson v Mendon Leasing Corp., supra; see also 10 Weinstein-Korn-Miller, NY Civ Prac 5015.12, at 50325 (The enumeration of specific grounds for vacatur in CPLR 5015 (a) is not intended to impair the traditional power of a court to grant relief from an order or judgment in the interests of justice). This power is rooted in a courts exercise of CPLR

control over its judgments. Ladd v Stevenson, supra.

5015 (a) codifies the principal grounds upon which courts have vacated judgments, but it is not an exhaustive list of such grounds. See Goldman v Cotter, supra, quoting Woodson v Mendon Leasing Corp., supra.

Here, in the original Article 78 proceeding, the FGEIS assumed the ramps would be approved and did not analyze alternatives if approval was not obtained. Additionally, the

City acknowledged that the ramps were an integral part of the plan and that the plan as conceived could not proceed without the ramps, and repeatedly and clearly stated that it would not seek to exercise its power of eminent domain prior to obtaining

approval of the ramps.

In reaching the decision to dismiss the As the City

petition, I relied upon the Citys representations.

has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment. The question remains as to whether doing so would be

in the interests of justice. Citing section 208 of the Eminent Domain Procedure Law (EDPL),3 the City argues that the Appellate Division has

3 EDPL 208 states: Except as expressly set forth in section two hundred seven, and except for review by the court of appeals of an order or judgment of the appellate division of the supreme court as provided for therein, no court of this state shall have jurisdiction to hear and determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article.

exclusive jurisdiction to consider challenges to the Citys exercise of its power of eminent domain. However, the fact that

the Appellate Division has the power to consider whether requirements regarding environmental review have been complied with (see EDPL 207[C][3]), does not mean that it has exclusive jurisdiction of the adequacy of environmental review. Although

those petitioners whose property the City seeks to obtain by means of eminent domain can seek review of the adequacy of the Citys compliance with SEQRA in the Appellate Division, there are other petitioners in this proceeding whose property the City is not currently seeking to acquire. A serious question exists as

to whether those non-condemnee petitioners would have standing to seek review of the Citys compliance with SEQRA in the EDPL proceedings. See Matter of East Thirteenth St. Community Assn.

v New York State Urban Dev. Corp., 84 NY2d 287, 297 (1994)(noncondemnees must be able to establish EDPL standing). Even assuming non-condemnees could establish EDPL standing, that is not their sole avenue of review. Id. (Accordingly, a

noncondemnee who cannot only allege but also establish EDPL aggrievement, and who can also maintain a separate article 78 challenge to a SEQRA finding, is entitled to seek SEQRA review in the eminent domain proceeding also [emphasis added]).

Furthermore, this situation is distinguishable from cases cited by the City in which a condemnee sought to raise an environmental or other issue, for the first time in a Supreme Court proceeding, after the eminent domain process had begun. ee e.g. Matter of East Harlem Bus. and Residence Alliance v Empire State Dev. Corp., 273 AD2d 33 (1st Dept 2000). In contrast,

here, the environmental questions regarding the ramps were raised in this

court well before the City sought to exercise its eminent domain power, and the City had expressly stated it would not exercise such power before obtaining approval of the ramps. I conclude that I have the inherent power to entertain petitioners concerns regarding the Citys new staged approach to the development of Willets Point and to consider the adequacy of Technical Memorandum, and that it is in the interests of justice to do so. At oral argument, I agreed that I would first determine the procedural question of whether to consider petitioners motion, and would permit the City to submit additional affidavits regarding the merits of the issues raised by petitioners, if I determined that those questions are properly before the court. Having decided the procedural question, the City is permitted to submit supplementary materials.

However, should the Appellate Division consider the environmental issues raised by petitioners in the eminent domain litigation, its ruling might resolve the issues raised herein. Therefore, as a matter of judicial economy, it is prudent to await the ruling of the Appellate Division in the eminent domain case before considering the merits of petitioners motion. The

parties, therefore, shall appear at a conference to discuss the mechanics of how to further proceed with this matter.

Accordingly, it is hereby ORDERED that petitioners motion is held in abeyance pending further proceedings in accordance with this interim decision and order; and it is further ORDERED that the parties are directed to appear for a conference on January 27, 2012, at 10:00 a.m., in Part 11, Room 351, 60 Centre Street.

Dated: December 6, 2011 S/

ENTER:

____________________ J.S.C.