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
T. Schneiderman, Attorney General, New York, NY (Claude S.
Platton and Bethany A. Davis Noll of counsel), for
C. BALKIN, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
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.
the papers filed in support of the motion and the papers
filed in opposition thereto, and upon the argument of the
appeals, it is
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.
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).
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.
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
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).
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.
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.
petitioner then commenced the instant proceeding pursuant to
CPLR article 78, challenging the Commissioner's
determination. The Supreme Court denied the petition ...