This opinion is uncorrected and subject to revision in the Official Reports.  This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

 

M E M O R A N D U M

SUPREME COURT : QUEENS COUNTY
IAS PART 23
------------------------------------x                                       INDEX NO. 5946/2000
Matter of BROAD CHANNEL
ATHLETIC CLUB, INC.                                                       BY: GLOVER, J.

              - against -                                                                 DATED: MAY 16, 2000

CITY OF NEW YORK
------------------------------------x

 

In this Article 78 proceeding, petitioner Broad Channel Athletic Club seeks a judgment in the nature of mandamus declaring that it has the right to purchase its leasehold and adjacent property pursuant to the Broad Channel Conveyance Act of 1995, and directing the City of New York to sell such property to it. Respondent City of New York cross-moves for an order dismissing the petition.

Petitioner Broad Channel Athletic Club (hereinafter ABCAC@) entered into a lease agreement with the City of New York, whereby it leased vacant land to be used as a ball field for sports events. The lease agreement authorized petitioner to use Block 112, Lots 1-3 and Block 107, Lots 10-17 as a baseball field and for other sports for the period of January 1, 1964 through December 31, 1964, at a monthly rental of $1.00, and provides for an automatic renewal. Petitioner has continuously occupied the premises since 1964 and pays the same $1.00 nominal monthly rental to the City of New York. The subject premises consist of approximately 47,500 square feet and are located at the foot of 2nd and 3rd Road, between Boulevard and Channel in Broad Channel, Queens County.

In the early 1900s, the City of New York took title to a large parcel of real property located in Jamaica Bay, Queens County, pursuant to a conveyance of real property from the State of New York to the City. The City of New York leased to the developer a parcel of this property which included Broad Channel and underwater lands for development for residential and commercial purposes. The developer's map created a network of streets and numbered blocks and lots that were eventually developed into a residential and commercial area. The development failed and in 1939 the developer surrendered the leasehold back to the City of New York. At this time it was occupied by individuals who had been invited onto the land by the developer, and the City entered into leases with these individuals and entities. In 1973, the 1973 Broad Channel Conveyance Act was enacted by the State Legislature (Laws of 1973, ch. 756), which granted the Aauthority or power@ to Athe City of New York to sell or lease any of the lands situated in the Big Egg marsh now known as Broad Channel***provided, however, such sale or lease shall be to the lessees of such lands upon terms approved by the board of estimate, with or without advertisement in the city record and without public auction.@ Over 900 parcels of land were sold pursuant to the 1973 Act. At the beginning of the 1990s less than 100 parcels were still owned by the City of New York.

In 1995, the State Legislature enacted the Broad Channel Conveyance Act (Laws of 1995, ch.239). The 1995 Act became effective on July 26, 1995, provides as follows:

Section 1. Notwithstanding any inconsistent provisions of ' 20 of the general city law or section 383 of the New York City charter restricting the alienation of waterfront property and land under water, the city of New York is hereby authorized to sell and convey all or any part of the right, title, and interest which the city now has or which it may hereafter acquire by virtue of in rem tax foreclosure proceedings in the lands known as ABroad channel@, tax blocks 15300 through and including tax block 15500 on the tax map of the city of New York for the borough of Queens. Except as otherwise provided in sections two and three of this act, the sale of such lands shall be subject to section 384 of the New York city charter.

 

Section 2. Notwithstanding any incon- sistent provision of section 384 of the New York city charter and subject to review pursuant to sections 197-c and 197-d of the New York city charter, for a period of five years after the effective date of this act, the mayor of such city may authorize the sale, without competitive bidding and for such consideration and upon such terms and conditions as shall be determined by the mayor of such city, of the city's right, title and interest in any parcel or parcels of the property described in section one of this act which on August 19, 1992 was subject to a leasehold:(i) to a person who was the lessee of such parcel on such date or his or her heirs, successors, or assigns(Alessee@), or (ii) if the lessee cannot be located, to the owner of the improvements situated on such parcel who would otherwise qualify to be a tenant of the city for such property at the of sale (Aowner of improvements@), or (iii) if the lessee and the owner of improvements cannot be located, to an occupant in possession of such parcel who would otherwise qualify to be a tenant of the city for such property at the time of the sale of said parcel pursuant to this section.

 

Section 3. Notwithstanding any inconsistent provision of section 384 of the New York city charter and subject to review pursuant to sections 197-c and 197-d of the New York city charter, for a period of five years after the effective date of this act, the mayor of such city may authorize the sale of the city's right, title, and interest in any parcel or parcels of the property described in section one of this act which is adjacent to a privately owned parcel, without competitive bidding and for such consideration and upon such terms and conditions as shall be determined by the mayor of such city, to the owner of such privately owned parcel, provided that (i) if the privately owned parcel was purchased from the municipality prior to the effective date of this act, the adjoining parcel shall not exceed three thousand square feet, or (ii) if the privately owned parcel was purchased from the municipality after the effective date of this act, the adjoining parcel shall not exceed the area of the privately owned parcel which was or is being purchased.

 

Section 4. Any proposed sale pursuant to section one, two or three of this act shall be reviewed where required by law, for consistency with any waterfront revitalization program, including the public access policies thereof, adopted by the city pursuant to section 915 of the executive law.

 

Section 5. Chapter 756 of the laws of 1973 relating to the power of the city of New York to sell certain land in Broad Channel in the county of Queens is REPEALED.

 

Section 6. This act shall take place immediately.

 

 

Following the enactment of the 1995 Act, the Division of Real Estate Services, Department of Citywide Services (ADCSA@) began discussions with various Broad Channel tenants regarding the possible conveyance of title to properties that fell within the provisions of the 1995 Act. The City has negotiated contracts of sale for some, but not all, of remaining City owned property located in Broad Channel. The City's authority to negotiate contracts of sale pursuant to the 1995 Act ends on July 25, 2000. The City asserts that closings may occur after July 25, 2000 so long as a contract of sale has been executed by that date.

There have been numerous oral and written communications between the DCAS and representatives of petitioner BCAC. In a letter dated November 17, 1998, the Chairwoman of BCAC informed the DCAS that it was interested in purchasing the leased premises and the adjacent property. In a letter dated March 3, 1999 the DCAS notified the BACA of the sales program in Broad Channel, and outlined the procedure to arrange a meeting between the City and BCAC regarding the possibility of the sale of the subject property. This letter specifically stated that Aat any point in the procedure DCAS may determine that it is in the best interest of the City not to sell a property. No sale is final until title is closed@. BCAC responded on March 8 1999, stating that it was interested in purchasing the property.

The DCAS in a letter dated April 12, 1999 referred to BCAC's letter of November 17, 1998 and noted that BCAC had rejected the City's proposal that the property be assigned to the Parks Department. In addition as BCAC had failed to submit a letter addressing the historical and anticipated use of the property and as no consensus could be reached among the various groups interested in the subject property, the DCAS and the Parks Department would continue to review their options. In another letter dated April 12, 1999, DCAS referred to BACA's letter of March 8, 1999 and informed the BCAC that it had not yet decided whether it would consider the sale of properties in the immediate area of West 1st to 3rd Roads, stating that the agency had had discussions with the Parks Department about the possibility of the assignment of lands in this area to the Parks Department. The DCAS stated that it would hold BCAC's request to establish eligibility, without prejudice, until such time as a decision was made regarding the future of this area. Petitioner's attorneys, in a letter dated May 7, 1999, advised the DCAS that the firm had been retained by BCAC to assist them with the purchase of the property. DCAS, in a letter dated May 20, 1999 informed petitioner's counsel that A[w]e have been advised that discussions are continuing between the Parks Department and Broad Channel Athletic Club. While they are ongoing, there is no change from the April 12, 1999 letter sent to your client, attached@. Petitioner's counsel, in a follow up letter stated, in part, the following: Aplease be advised that my clients inform me that there are no discussions between the Parks Department and Broad Channel Athletic Club and that Broad Channel Athletic Club insists upon their rights under the Broad Channel Conveyance Act of 1995 to purchase the property that has been under lease to them for more than thirty-five years@. In a letter dated June 15,1999 DCAS stated, in part, as follows: "First, let me clarify that neither your client nor any other tenant in Broad Channel has a right to purchase. The State Enabling Legislation gave DCAS the right to sell to certain parties under certain circumstances, but imposed no obligation to do so. As there seems to be some confusion in getting the message to your client, please inform them that the Parks Department is considering the possibility of entering into a long term arrangement with your client to manage the referenced property. Please therefore arrange for the earliest possible meeting through Rebecca Sheinfeld (212 360-1348) of the Parks Department. No sale is currently being contemplated, however, DCAS will await the results of that meeting before making its determination regarding the future of this property@. The DCAS sent a similar response, dated June 17, 1999, to the president of the BCAC, in response to a letter he had sent to Mayor Giuliani. On December 7, 1999 BCAC met with representatives from the New York City Parks Department at which time the attendees discussed a management proposal prepared by BCAC. BCAC was advised that many of its proposed ideas were incompatible with the manner in which parkland may be managed. BCAC and the Parks Department were unable to come to terms on a management agreement. On December 29, 1999 BCAC again wrote to the DCAS, requesting another meeting to discuss the sale of the subject parcels. The DCAS, however, has made no final decision, to date, on whether the subject real property should be sold to BCAC, or placed under the jurisdiction of the Parks Department.

Petitioner BCAC now seeks a judgment in the nature of mandamus, compelling the City of New York to make a decision regarding the sale of the subject real property to the petitioner. It is asserted that the 1995 Broad Channel Conveyance Act requires that the City sell the subject property to the petitioner, that the statutory language of the Act is mandatory rather than permissive and that the legislative history establishes that the statute was enacted to permit a certain class of individuals to purchase the land without competitive bidding. Petitioner further asserts that the City's inaction, in failing to sell the property to BCAC constitutes a decision not to sell the property. In the alternative, it is asserted that the City must be compelled to render a decision in this matter. Finally, petitioner asserts that the City's failure to sell it the property is arbitrary and capricious, discriminatory and an abuse of discretion and, therefore, the City should be directed to sell the subject property to the petitioner.

Respondent City of New York cross-moves in opposition and seeks an order dismissing the petition. It is asserted that the 1995 Act does not require the City to sell the property to the petitioner. The City, therefore, asserts that any decision it may make regarding the sale of property in the Broad Channel area is purely discretionary and not subject to mandamus. It is further asserted that the City is not obligated to make a determination as to whether or not it should sell the property to BCAC, as the 1995 Act does not require the City to take any specific administrative action with regard to applications to purchase property in the Broad Channel area. Therefore, it is asserted that the City cannot be compelled to render a decision at petitioner's behest. The City further asserts that as it has not made any determination as regards petitioner's application to purchase the property, the within proceeding is premature, and should be dismissed.

It is well established that the extraordinary remedy of mandamus Ais appropriate only where the relief is <clear= and the duty sought to be enjoined is performance of an act commanded to be performed by law and involving no exercise of discretion.@ (Matter of Kupersmith v Public Health Council, 101 AD2d 919, affd 63 NY2d 904, citing Matter of Hamptons Hosp. and Med. Center v Moore, 52 NY2d 88, 96.) The act sought to be compelled must be ministerial, nondiscretionary, and nonjudgmental and be premised upon specific statutory authority mandating performance in a specific manner. (Matter of Peirez v Caso, 72 NY2d 797.)

Petitioner herein has not established a clear right to relief and is explicitly asking the City of New York to perform a discretionary act that is not premised on any specific authority. Petitioner's reliance on Matter of Scoglio v County of Suffolk (85 NY2d 709) is misplaced. The Court of Appeals therein affirmed the Appellate Division's finding that the statute at issue, section 125 of the Highway Law, is permissive as to whether the property is to be sold by the County in the first instance. That statute provides only that the County "may" lease or convey surplus property deemed unnecessary for highway purposes in the manner provided and cannot be read to require the County to do so. (supra at 712.) In the case at bar, the provisions of the 1995 Broad Channel Conveyance Act vests the City of New York with the discretion to sell the Broad Channel property to certain designated lessees, tenants or occupants in possession. The Act provides that the Mayor Amay authorize the sale@ of City owned property in Broad Channel to three categories of potential purchasers. The court finds that by its terms the statute is permissive in nature, authorizing the alienation of City-owned waterfront property. Contrary to petitioner's assertions, the statutory language is not mandatory in nature and does not create a purchase option which mandates the sale of the property upon request. Rather, the statute, by its terms, provides that negotiated sales of leased and adjacent properties is at the discretion of the City. There is nothing in either the legislative history or the language of the statute that requires the sale of the Broad Channel properties, or creates in the three listed classes an absolute right to purchase the property on demand. (See generally, N.Y. Statutes ' 177.) The court, therefore, finds that it is within the City's discretion to sell all, none or some of the Broad Channel properties, and mandamus is not available to compel the City to sell the subject parcels to the petitioner.

Petitioner is also not entitled to mandamus directing that the City make a determination on BCAC's application to purchase the subject property. Petitioner has not set forth any statutory authority mandating such performance by the City in a specific manner. The 1995 Act does not set forth any administrative procedures regarding potential negotiated sales of the Broad Channel properties and, therefore, no basis exists for the relief sought. The court, clearly, cannot direct the City to perform a discretionary act. In view of the foregoing, petitioner's claims that the City's failure to make a decision to sell the subject property constitutes a denial of its application and that such a denial is arbitrary and capricious, and an abuse of discretion, are without merit.

Finally, petitioner may not rely upon past legislation that was explicitly repealed and past actions by the City to sell some of the property within the Broad Channel area. There is no evidence that any City official who had authority to act following the effective date of the 1995 Act made any representations to BCAC regarding the sale of the subject parcels. Rather, the evidence establishes that the City was considering turning over the subject property to the jurisdiction of the Parks Department and to date has not decided to sell the property. This, however, does not give rise to any right on the part of petitioner to purchase the property on demand.

In view of the foregoing, petitioner's request for mandamus declaring that it has the right to purchase the subject property and directing the City to sell the property is denied and the cross motion to dismiss the petition is granted.

                  Settle judgment.

                                                                                                _____________________________
                                                                                                                           J.S.C.