PVS Chemicals, Inc. v. New York State Department of Environmental Conservation

Appellate Division of the Supreme Court of New York

PVS Chemicals, Inc. v. New York State Department of Environmental Conservation

256 A.D.2d 1241, 682 N.Y.S.2d 787, 1998 N.Y. App. Div. LEXIS 14436

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 1998

StatusPublished

Cited by6 cases

This text of 256 A.D.2d 1241 (PVS Chemicals, Inc. v. New York State Department of Environmental Conservation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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PVS Chemicals, Inc. v. New York State Department of Environmental Conservation, 256 A.D.2d 1241, 682 N.Y.S.2d 787, 1998 N.Y. App. Div. LEXIS 14436 (N.Y. Ct. App. 1998).

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Opinion

—Judgment unanimously affirmed with costs. Memorandum: Petitioner appeals from a judgment dismissing its petition challenging the issuance of a positive declaration (6 NYCRR 617.2 [ac]) by respondent. Supreme Court properly held that “the issuance of a positive declaration is not final agency action subject to CPLR article 78 review” (Matter of Rochester Tel. Mobile Communications v Ober, 251 AD2d 1053, 1054). A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art 8) and therefore not ripe for judicial review (see, Matter of Rochester Tel. Mobile Communications v Ober, supra, at 1054, citing Matter of Town of Coeymans v City of Albany, 237 AD2d 856, 857, lv denied 90 NY2d 803). Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration. Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position (see, Matter of Essex County v Zagata, 91 NY2d 447, 454). (Appeal from Judgment of Supreme Court, Erie County, Scorners, J. — CPLR art 78.) Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.

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—Judgment unanimously affirmed with costs. Memorandum: Petitioner appeals from a judgment dismissing its petition challenging the issuance of a positive declaration (6 NYCRR 617.2 [ac]) by respondent. Supreme Court properly held that “the issuance of a positive declaration is not final agency action subject to CPLR article 78 review” (Matter of Rochester Tel. Mobile Communications v Ober, 251 AD2d 1053, 1054). A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art 8) and therefore not ripe for judicial review (see, Matter of Rochester Tel. Mobile Communications v Ober, supra, at 1054, citing Matter of Town of Coeymans v City of Albany, 237 AD2d 856, 857, lv denied 90 NY2d 803). Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration. Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position (see, Matter of Essex County v Zagata, 91 NY2d 447, 454). (Appeal from Judgment of Supreme Court, Erie County, Scorners, J. — CPLR art 78.) Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.

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256 A.D.2d 1241, 682 N.Y.S.2d 787, 1998 N.Y. App. Div. LEXIS 14436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pvs-chemicals-inc-v-new-york-state-department-of-environmental-nyappdiv-1998.

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