Queens Co-ops' Lawsuit to Block Local Law 97 Is Revived by Appeals Court

Not so fast. A lawsuit seeking to block the city's Local Law 97, which imposes fines on building owners who fail to reduce their buildings' carbon emissions under prescribed caps, was dismissed in November by a state Supreme Court justice. Now, an appeals court has reversed the dismissal of one of the suit's four claims, breathing new life into a legal crusade that was given up for dead.

A five-judge panel in the Appellate Division's First Judicial Department has ruled unanimously that the state's Climate Leadership and Community Protection Act CLCPA) may preempt the city's Local Law 97, as the plaintiffs in the case claimed. The appeals court declined to overturn the dismissal of the other three claims — that Local Law 97 violates due process under the federal and state constitutions, that the law is retroactive, and that it's too vague.

In reversing the dismissal of the first claim, the appeals court judges wrote: “Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State’s transcendent interest, whether or not the terms of the local law actually conflict with a statewide statute.” The judges added that "defendants failed to show that New York State’s CLCPA does not preempt New York City’s Local Law 97."

The plaintiffs in the original case were Bob Friedrich, president at Glen Oaks Village co-op in Queens; Warren Schreiber, president at Bay Terrace Section 1 co-op, also in Queens; and Maiden LLC, a limited liability corporation that owns a mixed-use residential and commercial building in Manhattan.

In her dismissal of the suit last November, Supreme Court Justice J. Mahcelle Sweeting wrote that plaintiffs “cannot honestly maintain that they do not understand the conduct Local Law 97 prohibits or the penalties they will face for violations."

The reversal of the first claim by the Appellate Division stops far short of blocking Local Law 97, and it's likely to result in yet another appeal, this time to the state's highest court, the Court of Appeals.

"People who have watched this case assumed it would eventually wind up in the Court of Appeals," says William D. McCracken, a co-op and condo attorney at Moritt Hock & Hamroff who is not involved in this case.