Town of Verona v. Louis B. DeMario Enterprises, Inc.

231 A.D.2d 866, 647 N.Y.S.2d 600, 1996 N.Y. App. Div. LEXIS 14262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1996
• Status: Published

Opinion

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed the first and third causes of action in the petition. Those causes of action challenge the issuance by respondent Department of Environmental Conservation (DEC) of a solid waste management facility permit for an indoor sludge composting facility proposed by respondents Louis B. DeMario Enterprises, Inc., and City of Oneida. The record does not support the contention that petitioner was excluded from the review process. Petitioner was afforded an opportunity to participate as an "interested agency” in the review process (6 NYCRR 617.2 [u], [t]). The zoning issues raised by petitioner "fall outside [DEC’s] area of responsibility” (Matter of Hingston v New York State Dept. of Envtl. Conservation, 202 AD2d 877, 878-879, lv denied 84 NY2d 809; see, Matter of Valley Realty Dev. Co. v Jorling, 217 AD2d 349, 355). The record further establishes that DEC "identified the relevant areas of concern, took a hard look at those concerns and gave a reasoned elaboration of the basis of its determination” (Cram v Town of Geneva, 190 AD2d 1028, 1029).

The court erred, however, in staying further proceedings on the second cause of action pending a final determination in a related proceeding commenced in Supreme Court, Albany County. "[A] stay pending determination of another [proceeding] should not be granted unless the other [proceeding] presents complete identity of parties, causes of action and relief sought” (Matter of Dormer, 161 AD2d 405, 406; see, Hope’s Windows v Albro Metal Prods. Corp., 93 AD2d 711, 712; Pierre Assocs. v Citizens Cas. Co., 32 AD2d 495, 497). That identity is lacking in the two proceedings. We modify the judgment, therefore, by vacating the stay. (Appeal from Judgment of Supreme Court, Oneida County, Buckley, J.—CPLR art 78.) Present—Denman, P. J., Green, Callahan, Doerr and Davis, JJ.