The following papers numbered 1 to 5 read herein:

Upon the foregoing papers, defendant CAB Bedford LLC (Bedford) moves, pursuant to CPLR 3211 (a)(1) and (7), for an order dismissing plaintiff 159-MP Corp. d/b/a Food Town's (plaintiff) complaint against it.

Plaintiff is the lessor of the property located at 159 North 3rd Street in Brooklyn (Block 2352, Lot 9) and operates a Food Town supermarket at this location. Bedford owns the property located at 238-242 Bedford Avenue in Brooklyn (Block 2351, Lot 6) and is in the process of constructing a commercial retail center at this location which will include a Whole Foods Market. On March 28, 2011, Bedford filed a Form ZRD1 with the New York City Department of Buildings (DOB) seeking pre-approval of its retail center construction plans as a Type Alt-1, or major alteration, as opposed to a Type NB, or new building. In particular, the application called for the conversion of two manufacturing use buildings into a single retail use building. It is undisputed that requiring the development to go forward as a Type NB (as opposed to an Alt-1) would significantly increase the costs and complexities associated with the project. In fact, in its application to the DOB, Bedford's architect stated that "[r]equiring a filing as a New Building would eliminate the economic feasibility of the project as it is impossible to provide the then required parking for all the commercial floor area on the site or within 500' of the site." On May 11, 2011, the DOB approved Bedford's ZRD1 with certain conditions.

On November 22, 2012, Bedford filed with the DOB a second Form ZRD1 (ZRD1No.2) requesting a modification of the original ZRD1. In the application, Bedford's architect stated that "[i]n the previous 18 months, the local economic environment has changed in a significant way. The owner now feels that the local neighborhood can support additional retail space. Therefore they would like to add the maximum as of right commercial bulk to the site as allowed." As part of the ZRD1#2 application, Bedford's architect opined that the proposed plan would as qualify as an Alt-1 (as opposed to a NB) on two separate grounds, namely that no floor area would be removed and that no exterior walls would be removed.

On December 10, 2012, the DOB approved ZRD1#2 with conditions. In this regard, the DOB rejected the architect's claim that the plan did not involve the removal of floor area. Nevertheless, the DOB approved the plan based upon the representation that no perimeter walls were to be removed. On September 30, 2013, Bedford filed the project as an Alt-1. The DOB approved the application and, on or about December 31, 2013, issued a building permit for the job. Thereafter, construction on the project began. By summons and complaint dated June 8, 2016, plaintiff commenced the instant action against Bedford and the DOB. The gravamen of plaintiff's complaint is that Bedford knowingly and intentionally made material misrepresentations about the scope and nature of the construction work in its DOB filings in order to obtain approval of the project as an Alt-1 as opposed to a Type NB development. In particular, the complaint alleges that Bedford represented in its ZRD1#2 application that no [*2]perimeter walls would be removed during the construction project and that the DOB approved ZRD1#2 based upon this representation. However, according to the complaint, during the construction work, virtually all of the exterior walls of the existing buildings were demolished and rebuilt from scratch. The complaint further alleges that the DOB has been notified of these material misrepresentations but has failed to revoke the building permits for the project as required under applicable law. Finally, the complaint alleges that plaintiff has been damaged by Bedford's actions inasmuch as it is located only 400 feet from the retail center and the approval of the project as an Alt-1 resulted in the construction of at least 100 fewer parking spaces than would have been required for a Type NB development.

Based upon these allegations, the complaint asserts six causes of action including: (1) a claim for special damages against Bedford; (2) a judgment declaring that Bedford's filings contain material misrepresentations, that the retail center is in violation of the Zoning Law, and that the DOB failed to comply with its non-discretionary duty to revoke the building permits for the project; (3) a mandatory injunction requiring that Bedford remove and/or demolish any conditions at the retail center which are in violation of the Zoning Law and Building Code; (4) a mandatory injunction requiring the DOB to revoke all permits issued in connection with this construction project; (5) a permanent injunction enjoining the occupancy of the retail center until such time as Bedford complies with all applicable rules, laws, and regulations; and (6) a claim that Bedford negligently failed to comply with Building Code §§ 27-363 and 27-257.

In or about May of 2016, plaintiff moved for a preliminary injunction against Bedford restraining and enjoining it from performing any construction work on, or continued occupancy of the retail center pending final determination of the claims set forth in the summons and complaint. Thereafter, the DOB cross-moved to dismiss the complaint against it. In a decision and order dated August 18, 2016, the court denied Bedford's motion for a preliminary injunction. In so-ruling, the court found that Bedford had failed to make the required showing that it would be irreparably harmed in the absence of a preliminary injunction. The court also granted DOB's cross motion to dismiss the complaint against it. Bedford now moves to dismiss plaintiff's complaint against it pursuant to CPLR 3211 (a)(1) and (7).

In support of its motion, Bedford initially argues that plaintiff lacks standing to prosecute this action. In this regard, Bedford notes that, in order to obtain standing to sue based upon the violation of a zoning ordinance, a plaintiff must show that it will suffer direct harm that is different from that of the public at large. According to Bedford, plaintiff cannot establish such harm inasmuch as the only damages that plaintiff may sustain is loss of business due to economic competition, which is not the type of special damage that justifies the granting of an injunction. Bedford further maintains that even if plaintiff is entitled to a presumption of standing based upon its proximity to the retail center, such presumption is wholly rebutted inasmuch as plaintiff is obviously motivated by the anticipated injury to its business as a result of Whole Foods occupying a space in the retail center.

With respect to the individual causes of action asserted against it, Bedford maintains that the first cause of action fails to state a claim for special damages. In particular, Bedford argues that plaintiff cannot establish any depreciation in the value of its property as a result of the alleged zoning violation, which is a requirement for special damages.

Bedford also argues that plaintiff's second cause of action, which seeks a declaratory judgment, fails to state a claim. In particular, Bedford contends that plaintiff must establish that it has no adequate legal remedy in order to seek a declaratory judgment. However, according to Bedford, plaintiff has an adequate legal remedy inasmuch as it is seeking monetary damages. In addition, Bedford argues that there is no justiciable controversy between the parties inasmuch as plaintiff has not exhausted its administrative remedies by challenging the permits and temporary certificates of occupancy issued by the DOB.

With respect to plaintiff's third and fifth causes of action, which seek a mandatory and permanent injunction against it, Bedford contends that these claims must be dismissed since plaintiff cannot establish irreparable harm and any alleged damages it suffers are strictly financial in nature.

Finally, Bedford argues that plaintiff's sixth cause of action, which alleges negligence based upon the failure to comply Building Code §§ 27-363 and 27-257, must be dismissed since plaintiff has failed to demonstrate or allege that these statutes imposed a specific duty upon a party.

In opposition to Bedford's motion, plaintiff initially argues that there is no basis to dismiss its complaint under CPLR 3211 (a)(1) inasmuch as Bedford has failed to submit any documentary evidence which would warrant dismissal. In particular, plaintiff notes that Bedford has merely submitted the affidavit of an architect, which does not constitute documentary evidence for purposes of CPLR 3211 (a)(1).

In further opposition to the motion, plaintiff argues that the court has already determined that it has standing in this action based upon its proximity to the retail center. In addition, plaintiff argues that it has a viable claim for special damages inasmuch as such damages may be inferred by its close proximity to the retail center. Plaintiff also argues that, under applicable case law, the availability of another legal remedy does not require the dismissal of its declaratory judgment cause of action. Finally, plaintiff contends that there is a justiciable controversy between the parties notwithstanding Bedford's claim that plaintiff failed to exhaust its administrative remedies before the DOB. In particular, plaintiff argues that it did not commence this action to challenge the issuance of permits or certificates of occupancy. Instead, plaintiff maintains that it commenced this action in order to challenge Bedford's deliberate actions in constructing the retail center in contravention of the permits and the representations it made to the DOB in obtaining the permits.

As a threshold matter, the court must address the issue of whether plaintiff has standing in this matter. "Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant's activities" (Zupa v Paradise Point Ass'n Inc., 22 AD3d 843, 843 [2005], citing Little Joseph Realthy v Town of Babylon, 41 NY2d 738 [1977]). "[T]o establish special damage it is necessary to show that there is some depreciation in the value of the premises as real property arising from . . . the forbidden use" (Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 218 [1967]). "[A]n allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury" (Zupa, 22 AD3d at 844). However, "[t]he status of neighbor does not . . . [*3]automatically provide the entitlement, or admission ticket, to judicial review in every instance" (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]). In this regard, the plaintiff must also "establish that the interest asserted is arguably within the zone of interests the statute protects" (Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., 139 AD3d 942, 944 [2016]).

Here, as noted above, plaintiff has alleged that it is located in close proximity to the retail center. Thus, it may be inferred that Bedford's alleged noncompliance with applicable Building Code and zoning provisions caused damages to plaintiff. Further, plaintiff's allegations are sufficient to establish that it is within the zone of interest the statute protects. In particular, the parking space requirement for a Type NB building protects the interests of existing businesses in the area, such as plaintiff's supermarket, against the reduction in available customer parking that would otherwise occur with the opening of the NB building. Accordingly, plaintiff has standing to commence this action.

Turning to plaintiff's individual causes of action, "[o]n a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail'" (Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681 [2017], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Further, "the factual allegations in the pleading must be deemed true, and the petitioner must be afforded the benefit of every favorable inference" (Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [2d Dept 2016]). "Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" (Gawrych, 148 AD3d at 681[internal citations and quotation marks omitted]). "A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Anzora v 81 Saxon Ave. Corp., 146 AD3d 848, *2 [2d Dept 2017] [internal citations and quotation marks omitted]).

Initially, although Bedford's notice of motion indicates that it is moving to dismiss pursuant to CPLR 3211 (a)(1) based upon documentary evidence, its motion papers contain no documentary evidence or legal arguments which support the granting of such relief. Accordingly, Bedford's motion to dismiss pursuant to CPLR 3211 (a)(1) is denied.

Turning to plaintiff's first cause of action, which seeks special damages, there is no merit to Bedford's argument that this claim must be dismissed based upon plaintiff's failure to establish a depreciation in the value of its property. As previously noted, given plaintiff's proximity to the retail center, such damages may be inferred (Zupa, 22 AD3d at 844; Golden v Steam Heat, Inc., 216 AD2d 440, 441-442 [1995]). Accordingly, that branch of Bedford's motion which seeks to dismiss the first cause of action for failure to state a claim is denied.

With respect to plaintiff's second cause of action, contrary to Bedford's claim, the fact that plaintiff might have an adequate remedy at law does not mandate the dismissal of its declaratory judgment claim (Hudson Valley Oil Heat Council, Inc. v Town of Warwick, 7 AD3d 572, 574 [2004]). Rather, under CPLR 3001, the court may render a declaratory judgment as to the rights of the parties to a justiciable controversy (Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2010]). [*4]"To constitute a 'justiciable controversy,' there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" (id.).

Here, plaintiff has alleged that in applying for the permits for the construction project, Bedford represented that it would not remove any existing perimeter walls in order to receive DOB approval as an Alt-1 construction job. Plaintiff further alleges that Bedford did in fact remove perimeter walls from the existing structure and that the as-built retail center deviated materially from what Bedford represented to the DOB. Thus, contrary to Bedford's claim, there is a genuine legal controversy between the parties that exists outside of the administrative process before the DOB. Accordingly, that branch of Bedford's motion which seeks to dismiss plaintiff's declaratory judgment claim against it is denied.

Plaintiff's third cause of action seeks a mandatary injunction directing that Bedford remove and/or demolish all offending conditions from the retail center. "As a general rule, a mandatory injunction to remove or destroy a building is a drastic remedy which will only be granted if the benefit to the movant if the injunction were granted and the irreparable harm to the movant if the injunction were not granted substantially outweighs the injury to the party against whom the injunction is sought" (Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2005]). Here, the complaint does not allege irreparable harm in the absence of an injunction, nor does it allege that the damages that plaintiff would sustain, in the absence of such an injunction, would substantially outweigh the damages that would be sustained by Bedford if the now completed retail center was demolished. Accordingly, plaintiff's third cause of action must be dismissed.

Plaintiff's fifth cause of action seeks a permanent injunction enjoining Bedford from occupying the retail center until it complies with all applicable rules, laws, and regulations. "A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction" (Swartz v Swartz, 145 AD3d 818, 828 [2016] [internal citations and quotations marks omitted]). Here, the complaint fails to adequately allege that plaintiff will sustain irreparable injury in the absence of an injunction or that monetary damages would be inadequate compensation (id., at 829). Accordingly, the fifth cause of action must be dismissed.

Plaintiff's sixth cause of action alleges that Bedford was negligent in failing to comply with Building Code §§ 27-363 and 27-257. Building Code § 27-363 sets forth certain minimum distances between exits. Assuming that the completed retail center was in violation of this provision, such violation may not form the basis of a negligence claim on plaintiff's part. In this regard, plaintiff's complaint fails to allege how it is impacted by such a violation or that its interests are within the zone interests protected by this provision. Building Code § 27-257 merely provides that "Occupancy Group F-3 shall include buildings and spaces in which the persons assembled are physically active and do not have a common center of attention."^[FN2] This provision does not impose any specific duty upon Bedford and does not appear to have any applicability to the instant matter. Accordingly, plaintiff's sixth cause of action must be dismissed.

In summary, that branch of Bedford's motion which seeks to dismiss plaintiffs first and second causes of action is denied. That branch of Bedford's motion which seeks to dismiss plaintiff's third, fifth, and sixth causes of action is granted.

This constitutes the decision and order of the court.