DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, for the reason set forth on the record it is ORDERED that the Petitioners’ application for a judgment pursuant to Article 78 of the Civil Practice Law and Rules is hereby denied, without prejudice. ORDERED that Petitioner’s request for a preliminary injunction is denied. ORDERED that Respondents’ Motion to Dismiss is hereby granted. This action was commenced with the filing of a Petition and Order to Show Cause on June 21, 2021. The Order to Show Cause sought a preliminary restraining order on the Respondents to enjoin them from opening proposed homeless shelters at 1055 Hylan Boulevard and 119 Tompkins Avenue, Staten Island, New York. On June 21, 2021, this Court denied the preliminary injunction. The Petitioners, Leticia Remauro, Joseph Mangini, Jenine Mangini, Richard LoBasso and Jeannette LoBasso, (hereinafter “Petitioners”), seek judicial review pursuant to CPLR Article 78 to challenge the “arbitrary, capricious and irrational decision of the Respondents, New York City of Department of Homeless Services (“DHS”) along with other governmental Respondents (“The City”) to open two homeless shelters on Staten Island…” See Petition dated June 21, 2021. Per the Petitioners, on March 16, 2021, the Department of Homeless Services, (hereinafter “DHS”), announced the opening of two (2) proposed shelters located on Staten Island, New York: 119 Tompkins Avenue (to house 100 men) and 1055 Hylan Blvd. (to house 50 women over the age of 50). The Petition alleges that the announcement regarding the opening of these shelters was made in the Staten Island Advance and to numerous elected officials on March 16, 2021. Article 78 The Affidavits of the Petitioners allege that the shelters will pose a “serious danger to the community” based upon sex offenders in the men’s shelter system and the likelihood “some will be housed at this site.” See Affidavit of Robert Mascali. Further, Petitioners allege that the proposed shelter at 1055 Hylan Blvd. poses a hazard to the community because the building is “not fire safe.” See Affidavit of James Bullock. Judicial review of the acts of an administrative agency under Article 78 is limited to questions expressly identified by statute (see CPLR 7803; Matter of Featherstone v. Franco, 95 NY2d 550, 554 [2000]). CPLR 7803 states: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. 5. A proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty-four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision. The Court must uphold an administrative agency’s interpretation of the statutes and regulations it administers if that interpretation is reasonable and does not run contrary to the clear wording of a statutory provision. See e.g. Goodwin v. Perales, 88 N.Y.2d 383 (1996); E. Pork Prods Co. v. N.Y. State Dep’t of Hous. & Cmty. Renewal, 187 A.D.2d 320 (1st Dept. 1992). Under this standard, the Court’s inquiry is limited to whether the determination by the administrative agency was rational (see Matter of Pell v. Bd. of Educ., 34 NY2d 222, 231 [1974]). The Court must consider first whether this controversy is ripe for review and whether Petitioners have standing to bring this action at this time. An Article 78 proceeding “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. A determination generally becomes binding when the aggrieved party is notified.” See Westbury v. Dept. of Transp., 75 NY2d 62, 72 [1989]. Pursuant to CPLR 7801(1), an Article 78 proceeding “shall not be used to challenge a determination…which is not final.” Petitioners contend that the matter was brought timely pursuant to Article 78 as they claim the final determination of the Respondents was made on March 16, 2021 by its publication in the Staten Island Advance. Respondents claim that the action is not yet ripe for judicial review. An action is ripe for judicial review after “a decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Gordon v. Rush, 100 NY2d 236, 242 (2003). According to the Respondents, DHS is still evaluating whether they will be opening these shelters and have not completed necessary reviews, such as an environmental assessment and a Fair Share review. Construction has not yet begun to fit the proposed sites for shelters. Notably, Respondents allege that DHS has not yet entered into contracts between the City and proposed non-profit providers for the operation of these shelters. As to standing, the Petitioners have the “burden of establishing both an injury-in-fact and that the asserted injury is in the zone of interests sought to be protected by the statute alleged to have been violated.” Matter of Vasser v. City of New Rochelle, 180 AD3d 691, 692 [2d Dept. 2020]. Specifically, in land use matters, the petitioners must “show that it would suffer direct harm, injury that in some way different from that of the public at large…Allegations of harm must not be conclusory or speculative.” Id. In the instant matter, Petitioners have not demonstrated any actual harm or injury. The shelters have not been opened and there are currently no proposed shelter occupants. For Petitioners to claim that alleged sex offenders or parolees will be occupying these specific shelters is speculative at best. “Upon a motion to dismiss a complaint pursuant to CPLR §3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.” Morris v. Gianelli, 71 AD3df 965. 967 [2d Dept 2010]. On a motion to dismiss, pursuant to CPLR §3211, the pleading is to be afforded “a liberal construction” and the plaintiff must be given the “benefit of every possible favorable inference.” Leon v. Martinez, 84 NY2d 83, 87-88 [1994]. The Court must determine only whether the facts as alleged “fit within any cognizable theory.” Id. Whether the Plaintiff can ultimately prove its allegations is not a consideration in determining a motion to dismiss. EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 [2005]. Based upon the foregoing, the Court finds that the Petitioners lack standing to bring an Article 78 at this time. Furthermore, the Petitioners have not suffered an actual injury and their claim is not yet ripe for judicial review. As these proposed shelters are still in planning phases, any injury alleged by the Petitioners is conclusory and speculative. Therefore, even after giving the Petitioners the “benefit of every possible favorable inference,” the Court must grant the motion to dismiss and deny the Article 78 petition. See Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Matter of Vasser v. City of New Rochelle, 180 AD3d 691, 692 [2d Dept. 2020]. Preliminary Injunction Pursuant to CPLR 6301, the party seeking a preliminary injunction must demonstrate a “probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor.” Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; See also CPLR 6301. A preliminary injunction should only be granted “with great caution and only when required by imperative, urgent or grave necessity, and upon the clearest evidence, as where the undisputed facts are such that without an injunction a trial will be futile.” Xerox Corp. v. Neises, 31 AD2d 195, 197 [1st Dept. 1968]. When the Order to Show Cause was initially brought on June 21, 2021, this Court denied the application for a preliminary injunction. After a full briefing of the motion, this Court maintains that the Petitioners have failed to meet their burden for a preliminary injunction. The Petitioners have not proven any probability of success on the merits, nor have they proven an irreparable injury. Pursuant to the Article 78 analysis above, the Petitioners’ claims are not yet ripe for judicial review and their allegations of irreparable injury are purely speculative. Therefore, the preliminary injunction request is denied. Conclusion Based upon the foregoing, the Petitioner’s request for a preliminary injunction and judgment pursuant to Article 78 is hereby denied, without prejudice. Petitioners have failed to show that their claim is ripe for judicial review and they have no injuries at the present time. The Petitioners’ desire to “not be near a shelter do[es] not constitute legally cognizable harm.” See Niebuauer v. City of New York, Index No. 154890/2019, 2020 NY Misc. Lexis 4053 (Sup. Ct. NY County August 3, 2020)(citing Spring-Gar Cmty, Civic Ass’n. v. Homes for Homeless, 149 AD2d 581, 582 [2d Dept. 1989]). The Petitioners have failed to demonstrate that the Respondents have acted in an arbitrary, capricious or irrational manner in planning for local homeless shelters. This constitutes the Decision and Order of the Court. Dated: August 10, 2021
