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In re Kellner

Supreme Court of New York, First Department

June 18, 2013

In re Assembly Member Micah Z. Kellner, et al., Petitioners-Appellants,
v.
The City of New York Department of Sanitation, et al., Respondents-Respondents.

Albert K. Butzel Law Offices, New York (Albert K. Butzel of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for municipal respondents.

Eric T. Schneiderman, Attorney General, New York (Simon Heller of counsel), for state respondents.

Andrias, J.P., Friedman, Moskowitz, DeGrasse, JJ.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 29, 2012, denying the petition to declare that respondents City Department of Sanitation (DSNY) and State Department of Environmental Conservation (DEC) failed to comply with the State Environmental Quality Review Act (SEQRA), DEC's own rules, and the City's Solid Waste Management Plan, and to enjoin the City respondents from proceeding with construction of the 91st Street Marine Transfer Station until they complied therewith, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The determinations of DSNY not to prepare and DEC not to require a Supplemental Environmental Impact Study (SEIS) were not affected by an error of law, arbitrary and capricious, or an abuse of discretion (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231-232 [2007]; Matter of C/S 12th Ave. LLC v City of New York, 32 A.D.3d 1, 7-8 [1st Dept 2006]; Matter of Coalition Against Lincoln W. Inc. v Weinshall, 21 A.D.3d 215, 223 [1st Dept 2005], lv denied 7 N.Y.3d 715 [2005]). As the lead agency, DSNY took the requisite "hard look" at the potential impacts of the delay in implementation and made a reasoned determination that an SEIS was not required. Petitioners' scenarios suggesting potential consequences of the delay are no more than speculation.

We have considered petitioners' remaining arguments and find them unavailing.


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