The challengers of the Bruckner Boulevard rezoning are appealing a Bronx Supreme Court judge’s decision to dismiss their lawsuit, prolonging a legal battle that could drag into next year.
Buffalo-based land use attorney Richard Lippes filed a lawsuit against the city on Feb. 13 on behalf of a group of Throggs Neck residents against the contentious rezoning, arguing that the environmental review process wasn’t properly conducted. The project, which was approved in October 2022, is slated to bring nearly 350 apartments to the low-density East Bronx neighborhood.
Nathan Taylor, senior counsel for the city’s environmental law division, argued that the case should be dismissed because Lippes did not properly serve the city with the lawsuit on time or initially list Throggs Neck Associates LLC — the rezoning applicant — as a respondent in the case, calling these “fatal errors.”
Judge Leticia Maria Ramirez dismissed the case on Aug. 14, echoing the arguments that there were procedural issues with the lawsuit. Lippes filed a notice of appeal on Monday to the Appellate Division, First Department.
Article 78 cases — a method of challenging government actions in the state courts — are typically difficult, and more so for land use cases, according to Jeffery Braun, a lawyer for Kramer Levin who litigates commercial, real estate, land use and environmental cases for developers, corporations and nonprofits. The courts tend to be deferential to government actors, and land use projects are typically backed up by a process that incorporates professional work and explanations that support the city’s decisions, making it harder to argue the city is in the wrong, he said.
Braun told the Bronx Times that Lippes’ procedural missteps “kill” the case without even getting to its substance.
“If I were in his shoes, I would be very pessimistic,” Braun said.
In her decision, the judge said that even if she considered the merits of Lippes’ arguments about the project’s environmental review, she would not back him.
“That is kind of a typical reaction of the courts to those sorts of arguments,” Braun told the Bronx Times. “It’s very difficult to persuade courts that the city’s environmental review was defective in some material way.”
Lippes has six months to prepare and file his appeal — known as “perfecting” it — and he can request a 60-day extension and a second 30-day extension. He told the Bronx Times he doesn’t expect to use the whole time period.
So how is he feeling about his case?
“I always feel confident I’m going to win, every case and appeal that I take,” he said. “But I lost in the trial court. That’s why there’s appellate courts.”
Stefan Mooklal, the deputy chief of staff for the NYC Law Department, and rezoning applicant Throggs Neck Associates LLC — an entity that represents the property owners — declined to comment.
Reach Aliya Schneider at aschneider@schnepsmedia.com or (718) 260-4597. For more coverage, follow us on Twitter, Facebook and Instagram @bronxtimes
