The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 35, 37, 38, 39, 40, 41, 42, 43, were read on this motion to/for ARTICLE 78 (BODY OR OFFICER). DECISION ORDER, JUDGMENT The petition for an order directing respondents to cease and desist from “singling out Petitioners” for harmful treatment by implementing certain plans relating to Local Law 11 work on the south and west exposures of petitioners’ apartment is denied and this proceeding is dismissed. The petition is also denied to the extent it seeks an order for specific performance for the same relief. Background In this proceeding, petitioners (condo owners) complain that respondents have been performing ongoing Local Law 11 work for over a year on the building’s façade. They assert that their apartment was the only one with a western or southern exposure that would not be receiving the same remediation as other similarly situated units. The genesis of this Article 78 proceeding is that decision — not to remediate in the way petitioners desire. Specifically, petitioners claim that rather than comply with the plans that respondent entered into which require replacing shelf-angles, fixing cinder block, installing vapor barriers and re-doing the walls of petitioners’ apartment, respondents are only going to put pins in the wall where there is crumbling or non-existent cinder block. They claim that this decision clearly violates the by-laws by singling out petitioners. Petitioners speculate that the work can be done the way they want but that petitioners have unique windows and respondents did not budget for the additional cost of this work. In opposition, respondents acknowledge that they made the initial decision to do the Local Law 11 work but the instant petition improperly seeks to have the Court dictate the method of completing the construction. Respondents also stress that they have not made any final decisions about the work on petitioners’ apartment. They claim that the instant petition should be dismissed as premature. Moreover, respondents claim that determinations about how to conduct building repairs falls within the business judgment rule. They point out that petitioners are unhappy because they were allegedly “singled out” but at the same time acknowledge that their apartment requires a different scope of work due to their unique window installation. Respondents assert that they devised alternate construction plans involving a pinning method for the façade near petitioners’ apartment. Respondents also claim that this proceeding is duplicative of a separate action pending in this Court. Discussion In an article 78 proceeding, “the issue is whether the action taken had a rational basis and was not arbitrary and capricious” (Ward v. City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d 587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable” (id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts” (Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]). As an initial matter, the Court did not consider the reply filed by petitioners. The order to show cause did not provide for a reply and, rather than requesting leave to file such papers, petitioners simply uploaded a reply without permission. Petitioners only asked for permission after respondents rejected these papers. And, bizarrely, the reply also seeks additional affirmative relief not contained in the petition (to strike an affidavit attached to respondents’ answer). Obviously, that is also improper. The Court must first consider whether this proceeding is ripe for review under an Article 78. That requires a determination about whether respondents have made a final determination about the work to be done on petitioners’ apartment. “An administrative determination becomes “final and binding” when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be…significantly ameliorated by further administrative action or by steps available to the complaining party” (Walton v. New York State Dept. of Correctional Services, 8 NY3d 186, 194, 831 NYS2d 749 [2007] [internal quotations and citation omitted]). As applied to respondents’ actions, the Court finds that there has not been a final determination made. Respondents’ project manager for the Local Law 11 work at the building explains that this project has been ongoing since 2017 (NYSCEF Doc. No. 41, 15). Mr. Joseph’s affidavit makes clear that the project is not completed and no final decision has been reached regarding what method is to be used on petitioners’ façade (id.
