Colonial Sand & Stone Co. v. Flacke

75 A.D.2d 894, 428 N.Y.S.2d 55, 1980 N.Y. App. Div. LEXIS 11543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1980
• Status: Published

Opinion

Proceeding pursuant to article 78, inter alia, to review a determination of the respondent Commissioner of the New York Department of Environmental Conservation, dated March 14, 1979, which granted petitioner’s application for a mining permit subject to certain conditions. On the court’s own motion petition of Colonial Sand and Stone Company, Inc. (Colonial) is amended to join Morewood Realty Corporation (Morewood) as a petitioner therein. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. The determination of the respondent commissioner is supported by substantial evidence on the record. We note only that the issues regarding the commissioner’s decision to require Colonial to prepare an independent economic analysis of its proposed course of action and to post a reclamation bond of $2,000 per acre as conditions to the issuing of a mining permit have been rendered moot by the subsequent granting of the permit without such conditions (cf. Demisay v Whalen, 59 AD2d 444). Special Term had no power to grant Morewood leave to intervene in this proceeding inasmuch as the prospective intervener did not include in its motion papers a proposed pleading pursuant to CPLR 1014 (see Matter of Carriage Hill v Lane, 20 AD2d 914; Matter of Howard v Diamond, 76 Mise 2d 809). Since Morewood’s brief does not interpose any additional claims or objections with respect to the determination which petitioner Colonial seeks to review, Morewood has, in effect, joined in the petition of Colonial. Accordingly, Colonial’s petition is deemed amended to join Morewood as a petitioner. Lazer, J. P., Gibbons, Rabin and O’Connor, JJ., concur.