Art-Tex Petroleum, Inc. v. New York State Department of Audit

248 A.D.2d 901, 670 N.Y.S.2d 605, 1998 N.Y. App. Div. LEXIS 2811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1998
• Status: Published

Opinion

—Mikoll, J. P.

Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 30, 1997 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted a motion by respondent Department of Audit and Control to dismiss the petition.

Petitioner sought to nullify and vacate a notice of environmental lien filed by respondent Department of Audit and Control against petitioner’s property pursuant to Navigation Law § 181-a. Supreme Court determined that a CPLR article 78 proceeding was an improper form of relief and dismissed the proceeding.

Petitioner is an owner of real property located in the Town of Hopewell Junction, Dutchess County. A gas station was located therein which was leased to respondent Emporium Oil Terminal, Inc., who assigned its rights under the lease to respondent Dutchess Oil, Inc. The Department of Environmental Conservation notified petitioner of contamination from petroleum on the property and directed petitioner to clean up and contain the leak within five days. A demand for payment was mailed to petitioner in December 1995 and an environmental lien was placed on the property totaling $143,357.05. Petitioner commenced the instant proceeding.

Dismissal of this proceeding is appropriate in that petitioner, as owner of the contaminated property, is a discharger based on Navigation Law § 181 (1) liability. Further, inasmuch as petitioner failed to comply with the provisions of Lien Law § 59, which provides the means for vacating a lien, the petition was appropriately dismissed.

Crew III, White, Spain and Carpinello, JJ., concur.

Ordered that the judgment is affirmed, without costs.