Westchester Square / Zerega Improvement Org

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: Part IA-1
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THE WESTCHESTER SQUARE/ZEREGA Index #260573/09
IMPROVEMENT ORGANIZATION, INC., Motion Cal. #
JOHN BONIZIO, SANDI LUSK and
HANNAH ACAMPORA,
Plaintiff(s), Motion Seq. #
DECISION/ORDER
-against-Present:
Hon. Geoffrey Wright
ROBERrr V. HESS, Commissioner

Of The Judge, Supreme Court
New York City Departlnent of homeless Servicesl
SAINTS TOWER, LLC and “JOHN DOE” and
“JANE DOE,”

Defendant(s).
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Recitation, as required by CPLR 2219(a), of the papers considered in the review of
this Motion to:

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PAPERS NUMBERED
Notice of Petition, Affidavits & Exhibits Annexed 1
Order to Show Cause, Affidavits & Exhibits Annexed
Answering Affidavits & Exhibits Annexed 2
Replying Affidavits & Exhibits Annexed 3
Other (Cross-motion) & Exhibits Annexed

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

The Petitioners are residents and business people in the Westchester Square area of the Bronx, and bring this petition for an order directing the City of New York to cease housing homeless families in a newly constructed apartment building.

The petition is grounded on two argulnents: (1) the City did not follow the requirelnents of section 197-c of the City Charter, in failing to tilnely notify the local Community Board and obtain its input and (2) the area in question is over saturated with social service programs, to the detriment ofthe area residents and businesses. One particular
noted in the petition, is the clogging of local streets with vehicles servicing the programs, and the hogging of available street parking by those same vehicles, resulting in a loss of patronage by area businesses.

As interpreted by many cases, including FERRER v. DINKINS, 2006 A.D.2d 365, when the City enters into an agreement such as the one represented in this case, the procedures of section 197-c are not invoked [WALLABOUT COMMUNITY Ass'N. ~ CITY OF NEW YORK, 5
Misc.3d 1010(A), 798 N.Y.S.2d 714 (Table), 2004 WL 2480017 (N.Y.Sup.), 2004 N.Y. Slip Ope 51310(U), "in the matter at bar, the documents do not clearly establish a lease, in that there is nothing to show that the City would pay for unoccupied rooms, or that the owner did not retain'control to revoke the agreement at any particular time. However, petitioners do not argue that there was a written lease, but rather a "written agreement." It is not clear what sort of agreement petitioners believe would exist, given that the agreement concerns the operation of the premises to house residents. Both Ferrer and Matter of Davis analyzed similar facts
to those at issue and, in determining that there was no written lease, impliedly held that there was no other written agreement that would satisfy the terms of the City Charter. In other
words, neither Ferrer [FERRER v. DAVID DINKINS, 218 A.D.2d 89 (1st Dept. 1996)] nor Matter of Davis held that although a written lease did not exist, another sort of written document would have passed muster pursuant to the requirements of the City Charter.”]

The facts of this case closely’ track those of the cases referred to above. In addition, the Petitioners were granted some discovery prior to the final sublnission in this case, and nothing in the reply papers demonstrates any dispute of the basic defense to the petition, to wit, the agreement here was an oral agreement to fund an organization which would use the funds to rent rooms on an indefinite basis to house homeless families. Further undermining
the petition is the added fact that the landlord in question has-the option of opting out of participation in the program at any time. Thus, there is no lease here. Payments will only be
made for space that is actually occupied. The City does not own the land or building, that much is admitted by the petition itself, as well as it supporting affidavits. Even though the City admittedly was tardy in informing the Community Board, such information was a
courtesy only, and not a must. Therefore, there is no penalty for the delay. The Petitioners have been unable to cite a court decision that involves a silnilar fact pattern, while the Respondents refer to several. Therefore, after hearing the arguments of
counsel, and after reading the submissions by both sides, the petition is hereby dismissed. Respondents may settle a judgment in accord with this decision on notice to the Petitioners. This constitutes the decision and order of the Court.

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Dated: January 19, 2010 . GEOFFRY V.  WRIGHT
AJSC