## Facts

- Marymount School of New York (Marymount) occupied three adjoining buildings on Fifth Avenue in Manhattan within the Metropolitan Museum Historic District.
- The New York City Landmarks Preservation Commission (the Commission) had aesthetic jurisdiction over buildings located in the historic district.
- Marymount’s buildings were located in the historic district but were not individually designated New York City landmarks.
- 1025 Fifth Avenue, Inc. (1025) owned apartment buildings adjacent to Marymount’s buildings.
- Marymount applied to the Commission for permission to construct a rooftop gymnasium, intended to allow the school to conduct physical-education classes on-site.
- The Commission approved the project and issued Marymount a “notice to proceed,” authorizing the rooftop addition.
- 1025 commenced a CPLR Article 78 proceeding seeking to annul the Commission’s action.
- 1025 argued the Commission lacked statutory authority to issue a notice to proceed for alterations to a non-landmark building in a historic district, asserting that the statute addressed Commission authority over demolition of such buildings but not alterations.

## Issues

1. Whether the Landmarks Preservation Commission had statutory authority to issue a notice to proceed authorizing a rooftop alteration to a non-landmark building located within a designated historic district.
2. Whether, under Article 78 review, the Commission’s approval of the rooftop gymnasium lacked a rational basis or was arbitrary and capricious.

## Decision

- The court denied the Article 78 petition and sustained the Commission’s determination.
- The court held the Commission had authority to regulate and approve exterior work, including significant alterations, to buildings within a designated historic district even when the buildings are not individually designated landmarks.
- The court rejected petitioner’s argument that the Commission’s role in historic districts is limited to demolition-related decisions for non-landmark buildings.
- Applying Article 78 standards, the court found no basis to annul the approval as arbitrary, capricious, or beyond the Commission’s powers, leaving the notice to proceed in effect.

## Legal Principles

- In an Article 78 proceeding, a court will uphold an agency determination if it has a rational basis and is not arbitrary and capricious, an abuse of discretion, or affected by an error of law.
- A court may annul agency action that exceeds the agency’s statutory jurisdiction, but it will not substitute its judgment for the agency’s on matters committed to the agency’s role (including aesthetic review) when the agency acts within its authority.
- The Landmarks Law grants the Commission aesthetic review power over buildings within designated historic districts; that authority is not confined to demolition review and may reach significant exterior alterations that affect the district.
- Statutory provisions addressing demolition of non-landmark buildings in historic districts do not, standing alone, require reading the overall scheme as withholding Commission authority over alterations in the same districts.
- Where the Commission’s approval reflects consideration of the historic-district setting and the applicant’s stated institutional needs (such as providing required school facilities), the determination will be sustained if supported by the administrative record.

## Conclusion

The New York Supreme Court, New York County, refused to annul the Landmarks Preservation Commission’s approval of Marymount School’s rooftop gymnasium within the Metropolitan Museum Historic District, holding that the Commission’s historic-district jurisdiction authorized review and approval of significant exterior alterations to non-landmark buildings and that the agency’s determination survived deferential Article 78 review.


1025 Fifth Avenue, Inc. v. Marymount School of New York, 123 Misc. 2d 756 (1983)