SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK        PART 36
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In the Matter of the Application of
FOREST HILLS LEGAL DEFENSE FUND,
JOSEPH TIRACO and PAUL BETANCOURT,
               Plaintiffs,

       -against-

Index No.
113156/97

METROPOLITAN TRANSPORTATION AUTHORITY
and HOME DEPOT U.S.A., INC.,
       Defendants.
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JUSTICE STUART C. COHEN:

In this Article 78 proceeding, petitioning homeowners and residents, whose homes and property will allegedly be adversely impacted as the result of the construction and operation of a large retail outlet (the "Store"), request that a certain administrative determination permissive of the sale of a parcel of land (the "Lot") critical to the foregoing project be set aside; and respondents Home Depot U.S.A., Inc., as the purchaser of the Lot and owner/operator of the Store,, and Metropolitan Transportation Authority, as the 'seller' of the Lot seek dismissal of the Petition (CPLR 7804[f]; CPLR 3211 [a] [1] & [7].

Home Depot owns and operates a nationwide chain of retail discount stores which sell a myriad of products used for, and in connection with, home improvements and construction, Home Depot decided to build and operate such a store, the Store, in the Forest Hills/Rego Park section of Queens County. Among the various parcels of land assembled (nearly 10 acres) in furtherance of the Store project, was a relatively small lot, the Lot, from the MTA (about one-third of an acre).

In connection with the Lot, the MTA prepared a 1996 Environmental Assessment Form ("EAF'), which considered the consequences of establishing and operating the Store. The EAF included consideration of, inter alia, motor vehicle traffic, hazardous substances and air quality. Public discussions were, thereafter, held concerning the Store project. In May of 1997, the MTA issued a conditional Negative Declaration indicating that the Store would have an environmental impact upon the nearby area, but that same could be adequately rectified by the imposition of certain conditions. The sale of the Lot was scheduled to proceed subject to certain notice requirements (6 NYCRR 617-7 [d] [1] [iv]), which were satisfied in early June of 1977, The Petitioners thereafter failed to avail themselves of the provided for thirty-day public comment period. The sale of the lot occurred in mid July of 1997.

Petitioners then commenced this proceeding for the purpose of challenging the administrative determinations relative to the environmental consequences of the proposed construction and operation of the Store; as well as obtaining interim and permanent injunctive relief staying all construction and other activities at the Lot, and compelling compliance with the State Environmental quality Review Act ("SEQRA"). Therespondents' instant dismissal application ensued.

Upon further consideration of the Petition, the Court notes that with respect to setting aside a final administrative Determination, a Court may not substitute its judgment for that of an administrative body, unless the decision to be reviewed is arbitrary,capricious and constitutes an abuse of discretion. In making such a determination, the Court must determine whether there was a rational basis for, the decision rendered (Pell v Bd. of Education, 34 NY2d 222 [1974]),

The determination and action(s) of the MTA with respect to the sale of the Lot constitutes a waiver of an available administrative remedy. Furthermore, lacking any proof to the contrary, the Petitioners' conclusory allegations fail to support a claim indicating the complained of inadequacy(ies) of the MTA's environmental review. In view of the foregoing, the Court finds no basis in law or fact upon which the sale of the Lot by the MTA to Home Depot might be set aside.

As to a preliminary injunction, such a drastic remedy will issue only where it is demonstrated that the party seeking such relief will in all likelihood be successful upon the merits, where there will be irreparable injury, such that it cannot be compensated for by money damages, and the balance of equities are in the movant's favor (Aetna Insurance Co. v Cappaso, 75 NY2d 860 [1990]; Paine & Chriscoll v Blaire House Assoc., 70 AD2d 571 [1st Dept. 19791]).

The Court by reason of its determination herein that the MTA's administrative action was in lawful compliance with SEQRA and was otherwise appropriate and rationale, concludes that the petitioners will not succeed upon the merits in this proceeding. Moreover, the petitioners have failed to sufficiently establish that they would be unable to recover appropriate monetary relief within the context of a plenary action by reason of any unlawful act of the respondents in constructing the Store.

The Court upon consideration of the foregoing, finds that there exists a defense sufficiently grounded upon documentary evidence, and that the petitioners have otherwise failed to set forth in the pleadings an actionable claim. Accordingly, the respondents' instant dismissal application is granted in its entirety (CPLR 7804 [f], CPLR 321 1 [a] [1] & [7]; and the petitioner's instant application for injunctive relief is denied in all respects.

This shall constitute the decision of the Court,

Settle judgment.

Dated: November 24, 1997

J.S,C.

STUART C. COHEN

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