SUPREME COURT OF THE STATE OF NEW YORKCOLINTY OF RICHMOND

------xIn the Matter of a Proceeding under Article 78 of the

CPLR for a Writ of Mandamus,

MOLTNT BUILDERS LLC,

Petitioner,

-agarnst-

JAMES ODDO, in his Offrcial Capacity as BoroughPresident of Staten Island,

Respondent.

AFFIRMATION INOPPOSITION TOPETITIONER'SORDER TO SHOWCAUSE

Index No. 80154/15

X

NICHOLAS R. CIAPPETTA, an attorney duly admitted to practice in the

Courts of the State of New York, afÍirms the following to be true under the penalties of perjury

pursuant to Section 2106 of the New York Civil Practice Law and Rules (hereinafter "CPLR"):

1. I am an Assistant Corporation Counsel in the OfIice oÍ Zachary W. Carter,

Corporation Counsel of the City of New York, attorney for the Respondent James Oddo in his

offîcial capacity as Borough President of Staten Island. I am fully familiar with the facts and

circumstances set forth herein based upon the records of the City of New York and conversations

with agents, officers and employees of the City of New York.

2. I submit this affirmation in opposition to the motion, brought on by Order

to Show Cause by petitioner Mount Builders LLC seeking an order "enforcing the Decision and

Order of this Court, dated November 9, 2015 (the "November 9 Order"), and directing

Respondent James Oddo in his official capacity as Borough President of Staten Island to comply

with the November 9 Order....')

3. Petitioner's motion is lacking in merit as Staten Island Borough President

James Oddo fully complied with this Court's November 9, 2015 Order. To the extent that

petitioner is arguing that the actions taken by the Borough President's Office subsequent to the

Court Order were arbitrary or capricious, or an abuse of discretion, those arguments must be

raised in a new Article 78 proceeding. In any event, as discussed herein and in the

accompanying Affidavit of Robert E. Englert, R.A. ("Englert Affidavit"), those actions were

entirely rational and reasonable.

Procedural and Factual Historv

4. Petitioner brought the instant Article 78 proceeding by Notice of Verified

Petition and Verified Petition to compel the issuance of house numbers for its proposed

development at 239 Fingerboard Road, Staten Island, New York, Block 3019, Lot 120.1 In its

Prayer for Relief, petitioner requested an order and judgment "fc]ompelling Respondent James

Oddo to issue house number[sJ for the Development." (emphasis added). No other specific

relief was sought.

5. After this Office submitted an affrrmation of no opposition to the Petition

on behalf of Respondent James Oddo in his Offrcial Capacity as Staten Island Borough

President, the Court issued an Order dated November 9,2015.

6. The November 9,2015 Order granted the petition and stated in no

uncertain terms that "[t]he petition before this Courl is limited to the issue of whether the

Borough President is required to provide house numbers to Petitioner." (emphasis added).

¡ Pursuant to New York City Charter Section 82(3), the Office of the Staten Island Borough President

maintains a Topographical Bureau to, arnong otlier things, issue and record house uurnbers.

2

7 . Following the issuance of the November 9,2A15 Order, the Topographical

Bureau completed the site plan submitted by petitioner by entering the names of three streets

(Cupidity Drive, Fourberie Lane, and Avidita Place) and numbers for 176 dwellings thereon.

See Englert Affidavit at flfl 15 and20-21.

8. On or about December 10,2015, petitioner, through its architect, returned

the site map to the Office of the Staten Island Borough President and requested new street

names. See Exhibit A.

g. On or about December Il, 2015, petitioner filed the instant motion to

enforce the November 9, 2015 Order.

10. On or about December 15, 2015, Robert E. Englert, on behalf of the

Offrce of the Staten Island Borough President, issued a response to petitioner's December 10,

2015 letter stating, in sum and substance, that the Topographical Bureau does not have any

procedures in place for an applicant to challenge the issuance of street names. See Exhibit B.

ARGUMENT

A. The Office of the Staten Island Borough President fully complied with this Court'sOrder

I 1. The instant motion must be denied as the Office of the Staten Island

Borough President fully complied with both the letter and the "spirit" of the Coutl's November

9,2015 Order.

12. Petitioner alleges that it is aggrieved by the issuance of street names that

were not on its preferred list. This case, however, has never been about street names. Rather, as

is clear from the Petition and this Court's November 9,2075 Order, the sole issue raised is

"whether the Borough President is required to provide house numbers to Petitioner." (emphasis

added). Once the Court answered that question in the affirmative, the Office of the Staten Island

3

Borough President was required to issue house numbers. As set forth in the Englert Affidavit,

the Topographical Bureau issued house numbers for each house proposed to be constructed. See

Englert Affidavit af \21. Petitioner does not contend otherwise.

13. Nothing in the Court's Order addressed the issuance of street names or in

any way could be read to limit the Borough President's discretion in selecting street names. As

such, if petitioner wants to challenge the issuance of the street names on the ground that the

Borough President abused his discretion, he must file a new Article 78 proceeding.

B. The rejection of Petitioneros preferred street names and the selection of replacementnames were well within the discretion afforded the Borough President.

14. Even if this Court decides to conduct a review of the Borough President's

decision to issue the three street names for the proposed development, it should conclude that the

Borough President was well within his discretion to reject the names proposed by petitioner and

select names that fit the guidelines established by the Topographical Bureau.

15. The fact that Petitioner is displeased with the names that were ultimately

selected does not transform an otherwise rational decision into an arbitrary and capricious one.

Petitioner itself concedes that the Borough President has discretion in this area. See Affirmation

of Richard G. Leland ("Leland Affirmation") at fl 20. That discretion was not abused.

16. As thoroughly detailed in the Englert Affrdavit, the Borough's

Topographical Bureau has established internal policies and procedures to guide it in the selection

of names for private roadways. See Englert Affidavit at flfl 8-14. In the first instance, the

Topographical Bureau asks a developer to provide a list of prefened street names. See id. at fl 8.

This act of goodwill, however, does not require the Borough President to use the preferred names

or obtain an applicant's approval prior to selecting alternative names. Indeed, as stated by Mr.

Englert, there have been situations in which all prefened names were rejected and the

4

Topographical Bureau selected "names that were not among those proposed by the developer."

Id. at fl 13.

17.4 number of considerations guide the Topographical Bureau's selection

process, chief among these is the concern that the proposed street name does not resemble, in

whole or in part, or sound similar to, an existing street name. See Englert Affidavit at fl 9. If

names are too similar, there is a risk that emergency personnel may respond to the wrong

location, which obviously can have tragic consequences. This concern led to the rejection of five

of the nine names preferred by the developer. See id. at n 17. Other names were rejected

because they were too lengthy to properly fit on a street sign. See id. at 18.2 The remaining two

names were rejected out of concerns that they would inflame the controversy that has engulfed

this proposed development since its inception. See id. at fl 19. As the Topographical Bureau

adhçred to its well established procedures for the review of proposed street namss, its rejection

of the names proposed by the petitioner cannot be considered arbitrary and capricious or an

abuse of discretion. For these same reasons, petitioner's contention that the Borough President's

actions are "inconsistent with the custom and practices of the office that he holds" (Leland

,A,ffirmation at fl 19) is simply wrong.3

' Some names, such as "silver Bridge Drive" and "Willow Reach Lane," were both too lengthy and notdistinctive enough.

3 In support of its contention, petitioner references an unuamed former borough president of Staten Island.See id. af \20. As the unnamed former borough president has not submitted an affidavit in this case, the

Court should not give credence to this hearsay statement. In any event, the unnamed former boroughpresident's recollection is countered by the Affidavit of Robert E. Englert. Mr. Englert states that he has

worked at the Office of the Staten Island Borough President for nearly twelve years. See EnglertAffidavit at !J l. During that time, he has served two borough presidents, both of whom were his directsupervisor. See id. at\2. He further states that the practices and procedures goveming the issuance oflrouse numbers and street names were "largely unchanged" during his time at the Office of the Staten

Island Borough President. See id. at fl 3.

18. Once the preferred names were rejected, the Office of the Staten Island

Borough President appropriately exercised its discretion to choose alternative names that

conform to its guidelines. Most importantly, the names satisfy the Topographical Bureau's

concern for distinctiveness. As such, there is little danger that motorists, first responders, or

emergency service dispatchers will confuse these new street names with existing ones.

WHEREFORE, for all the above-stated reasons, it is respectfully requested that

this Court issue an order denying the instant Order to Show Cause, together with such other and

further relief as this Court deems just and proper.

Dated: New York, New YorkDecember 17,2015

ZACHARY W. CARTERCorporation Counsel of the

City of New YorkAttorney for Respondent James Oddo in his OfficialCapacity100 Church Street, 5th FloorNew York, New York 10007(212) 3s6-21e9

By: NICHOLAS AAssistant Corporation Counsel

6

EXHIBIT A

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December 10,2015

Robert Ii. Englert, R.A.Director of Land-Use, Planning & InfrastructureOffi.ce of the Staten Islancl Borough President10 Richmond TerraoeStaten lsland, New York 10301

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Re 239 Fingerboard Road, S.I.tllock 3019, Present Lot 120180 T'entative l,ots

Dear Mr. Englert:

Our office is retuming to your offîce the site plan with the marked up house nnmbers and

street names issued by your office. 'I'he list of street names that were given are notacccptable to our client and are herein requesting new street names be issued. Therefore, I

am sending you the original list of names that were requested. (attached is list) for thisdevelopment

If you rl tresl irl do not hesitate to contact my office.

S Õ tl þ¡

Peter J. Calvanico, P.E.

Attachments:

cc: Bruno Savo

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SUGGESTED STRËET NAMES FORBLOCK 3019, LOT 120

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1. PearlVlew Lane

2, Sílver Bridge Drive3. Tlmber Lane

4. lamb Run

5. Lazy Blrd Lane

6. Amber Heights Drive7. Rabblt Rldge Road

8. Wlllow Reach Lane

9. Turtle Drlve

EXHIBIT B

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15 December 2015

Peter J, Calvanico, P,E,Calvanlco Associates Architectural and Engineering P.C.

2535 Victory BoulevardStaten Island, NY 10314

Block 3019, Lot 120Staten Island, NY

Dear Mr. Calvanico:

I write in response to your letter dated December 10, 2015, which requests that the Staten Island Borough

President's Topographlcal Bureau (the "Bureau") issue new street names for the proposed development at thereferenced location,

As you are aware/ on or about November 24, 20t5, the Bureau issued house numbers and street names on thedevelopment site plan, The Bureau does not have any admlnlstratlve procedures ln place for an applicant tochallenge or seek reconslderation of the selected house numbers and street names,

As such, this Bureau wlll not conslder your December 10, 2015 request to change the street names that wereprevlously issued,

Sincerely,

Re:

gRobeft E. Englert, AIA

REE:brz

ROBERT E, ENGLERT, AIA I DIRECTOR

DIVISION OF LAND USE, PLANNING & INFRASTRUCTURE

BOROUGH HAIL I ROoM G-12 I STATEN ISLAND, NY X030X

P: 718-816-2112 | F: 718-816-2060 I WWW,STATENISLANDUSA.cOM

gtsc

Index No. 80154/2015

ZACHARY W. CARTERCorporation Counsel of the City of New York

Attornøyfor RespondentJames Oddo in his

fficialCapacþI 00 Church StreetNew Yorlç N.Y. 10007

OfCounsel: Nicholas R CiappettaTel: (212)356-2215NYCLIS No. 2015-044044

AFFIRMATION IN OPPOSITION TO ORDER TOSHOWCAUSE

In the Matter of a Proceeding under Article 78 of the CPLRfor a Writ of Mandamus,

MOLTNT BUILDERS LLC,

Petitioner,

-against-

JAMES ODDO, in his Offrcial Capacþ as Borough Presidentof Staten Islan{

Respondent.

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF RICHMOND