In re Application of New York City Coalition for the Preservation of Gardens, Petitioner-Appellant, Jeff Wright, et al., Petitioners, -against- Rudolph W. Giuliani, etc., et al., Respondents-Respondents, Donald F. Schneider BFC&R East 11th Street LLC, Intervenor-Respondent.
62670
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
246 A.D.2d 399; 666 N.Y.S.2d 918; 1998 N.Y. App. Div. LEXIS 285
January 15, 1998, Decided
January 15, 1998, Entered
 

NOTICE:

[***1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

COUNSEL:

For Petitioner-Appellant: Leslie H. Lowe.

For Respondents-Respondents: Janet L. Zaleon, Donald F. Schneider.

For Intervenor-Respondent: Donald F. Schneider.

JUDGES:

Sullivan, J.P., Ellerin, Andrias, Colabella, JJ.

OPINION:

[**918]

[*400] Order, Supreme Court, New York County (Jeffrey Atlas, J.), entered October 15, 1997, which denied petitioners' application to enjoin construction on lots allegedly occupied by community gardens and granted respondents' motion to dismiss the petition, unanimously affirmed, without costs.

The subject of this proceeding is a group of once-vacant lots in Harlem and the Lower East Side on which groups of residents have planted gardens. We agree with the IAS court that petitioner-appellant, having no "legally cognizable injury", is without standing to bring this action (see, Society of Plastics [**919] Indus. Inc. v County of Suffolk, 77 N.Y.2d 761, 777, 570 N.Y.S.2d 778, 573 N.E.2d 1034). Petitioner's members occupy the lots either without any enforceable license or permission (see, Matter of Lee v New York City Dept. of Hous. Preservation & Dev., [***2] 212 A.D.2d 453, 454, 622 N.Y.S.2d 944, lv dismissed, lv denied 85 N.Y.2d 1029), or pursuant to a license that was terminated (see, P & A Bros. v City of New York Dept. of Parks & Recreation, 184 A.D.2d 267, 269, 585 N.Y.S.2d 335). Since petitioner lacks standing, we do not reach its substantive arguments. Were we to reach them, we would find that the municipal respondent agency's determination that the action is Type II has a rational basis (see, Matter of We Stay/Nos Quedamos Comm. v New York City Dept. of Citywide Admin. Servs., 240 A.D.2d 302, 659 N.Y.S.2d 748).

ENTERED: JANUARY 15, 1998
 
 

 
LEXSEE 1998 N.Y. App. Div. LEXIS 285