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In re Benali, LLC

Supreme Court of New York, Second Department

May 17, 2017

In the Matter of Benali, LLC, appellant,
v.
New York State Department of Environmental Conservation, et al., respondents. Index No. 10686/13

         Appeals by the petitioner from a decision of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated May 22, 2014, and a judgment of that court entered July 28, 2015. The decision directed that the petition filed pursuant to CPLR article 78 be denied and the proceeding dismissed, and the judgment denied the petition and dismissed the proceeding.

          Rosenberg Fortuna & Laitman, LLP, Garden City, NY (David I. Rosenberg and Anthony R. Filosa of counsel), for appellant.

          Eric T. Schneiderman, Attorney General, New York, NY (Claude S. Platton and Bethany A. Davis Noll of counsel), for respondents.

          RUTH C. BALKIN, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         Motion by the respondent New York State Department of Environmental Conservation to dismiss the appeal from the decision on the ground that no appeal lies from a decision. By decision and order on motion of this Court dated November 6, 2015, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

         Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

         ORDERED that the motion is granted, and the appeal from the decision is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the respondents.

         The motion to dismiss the appeal from the decision must be granted, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 A.D.2d 509).

         The petitioner owns an unimproved parcel of real property in the Town of Southold. The parcel has frontage on West Lake. In April 2010, the petitioner applied to the New York State Department of Environmental Conservation (hereinafter the DEC) for a tidal wetlands permit for the construction of a two-story, single-family dwelling, stone driveway, sanitary system, and retaining wall on the property.

         On December 29, 2010, the petitioner sent the DEC a five-day demand for a decision on its application pursuant to 6 NYCRR 621.10(b). 6 NYCRR 621.10(b) provides that where the DEC fails to mail a decision within the time periods specified in 6 NYCRR 621.10(a), "the applicant may make notice of that failure, by means of certified mail, return receipt requested, addressed to the Commissioner of the Department of Environmental Conservation, attention: Chief Permit Administrator, New York State Department of Environmental Conservation, Division of Environmental Permits, 625 Broadway, Albany, NY 12233-1750. If authority to issue and deny permits has been delegated by the commissioner to another agency, notice must also be made to the chief executive of such agency. Such notice must contain the applicant's name, location of the proposed project, the office in which the application was filed, the identification numbers assigned to the application in any notice from the department and a statement that a decision is sought according to this subdivision or ECL 70-0109(3)(b). Any notice failing to provide this information will not invoke this provision " (6 NYCRR 621.10[b] [emphasis added]). 6 NYCRR 621.10(c) provides that if the DEC "fails to mail the decision to the applicant within five working days of the receipt of such notice, the application will be deemed approved and the permit deemed granted, subject to the standard terms or conditions applicable to such a permit" (6 NYCRR 621.10[c]; see ECL 70-0109[3][b]).

         On January 7, 2011, the DEC mailed the petitioner a response, denying the application. The response included several substantive reasons for the denial of the permit application and also stated that the determination was made within the five-day period set forth in 6 NYCRR 621.10(c).

         The petitioner challenged the DEC's denial letter as untimely. The matter was referred to an Administrative Law Judge (hereinafter the ALJ). The petitioner waived its right to appeal the denial of its permit on substantive grounds. It only challenged its entitlement to a permit pursuant to 6 NYCRR 621.10 on the ground that the DEC's response to its five-day demand was untimely. The petitioner contended that since the DEC failed to mail its decision within five working days after the receipt of the petitioner's five-day demand letter, the petitioner's permit application should be deemed approved. In opposition, the DEC took the position that the petitioner's five-day demand letter did not invoke the provisions of 6 NYCRR 621.10(b) because it omitted the words "attention: Chief Permit Administrator" and failed to include "Division of Environmental Permits" in the address.

         After holding a legislative hearing and issues conference (see 6 NYCRR 624.4[b]), the ALJ determined that the petitioner was not entitled to a permit pursuant to 6 NYCRR 621.10. The petitioner appealed to the DEC Commissioner (hereinafter the Commissioner). The Commissioner affirmed the ALJ's ruling on the ground that the petitioner's five-day demand did not conform with the requirements of 6 NYCRR 621.10(b) since it did not include the words "Attention: Chief Permit Administrator" and failed to include "Division of Environmental Permits" in the address. Therefore, the Commissioner determined that the demand did not invoke the provisions of 6 NYCRR 621.10.

         The petitioner then commenced the instant proceeding pursuant to CPLR article 78, challenging the Commissioner's determination. The Supreme Court denied the petition ...


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