Appellate Court Upholds Dismissal of Suit Against Brooklyn Bridge Park Corporation
By: Jonathan Kalmuss-Katz
On December 27, 2017, a New York appellate court unanimously upheld the dismissal of a challenge to the mixed-use Pierhouse development bordering Pier 1 in Brooklyn Bridge Park, ruling that the suit was barred by the governing four-month statute of limitations. Sive, Paget & Riesel P.C. represented Empire State Development; the Brooklyn Bridge Park Development Corporation; and, with the New York City Office of Corporation Counsel, the Brooklyn Bridge Park Corporation (“BBP”) in the defense of the underlying lawsuit and the appeal.
The Pierhouse development – which features residential, hotel and restaurant uses – generates critical funding for Brooklyn Bridge Park’s operations and maintenance. The project site was leased from BBP to a joint venture of Toll Brothers City Living and Starwood Capital Group in 2012, and the hotel building topped out at its maximum height in September 2014. However, the first lawsuit challenging the buildings’ approved heights was not commenced until April 2015. A second suit alleging violations of the Zoning Resolution’s scenic view plane regulations followed in December 2015.
Kings County Supreme Court Justice Lawrence Knipel dismissed both suits as time-barred. The challengers appealed the first dismissal, and the Second Department Appellate Division affirmed the lower court’s decision. The Second Department ruled that, while the lawsuit was pled as a declaratory judgment action, it “could have been brought as a proceeding pursuant to CPLR article 78 to review BBP’s and ESD’s approval of construction,” and was therefore subject to the four-month Article 78 statute of limitations. The Court further held that the limitations period began to run “at the latest, by September 10, 2014, when the northern building reached its maximum height.”