| Matter of Fairchild Corp. v Boardman |
| 2008 NY Slip Op 09399 [56 AD3d 778] |
| November 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Fairchild Corporation et al.,Respondents, v Joseph H. Boardman, as Commissioner of the Department ofTransportation of State of New York, Appellant. |
—[*1] Borovina & Marullo, PLLC, Melville, N.Y. (Anton J. Borovina of counsel), for respondentFairchild Corporation. DelBello Donellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Bradley D.Wank of counsel), for respondent Stew Leonard's Farmingdale, LLC (joining in the brief ofrespondent Fairchild Corporation).
In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of theDepartment of Transportation of State of New York dated May 26, 2004, denying the applicationof the petitioners, Fairchild Corporation and Stew Leonard's Farmingdale, LLC, for a highwaywork permit, Joseph H. Boardman, as Commissioner of the Department of Transportation ofState of New York, appeals, as limited by his brief, from so much of a judgment of the SupremeCourt, Suffolk County (Tanenbaum, J.), dated April 27, 2007, as granted the petition to theextent of vacating the determination dated May 26, 2004, and directed the Department ofTransportation of State of New York to issue a highway work permit to Fairchild Corporationand Stew Leonard's Farmingdale, LLC, subject to [*2]reasonableconditions in accordance with Highway Law § 52.
Ordered that the judgment is modified, on the law, by deleting the provision thereof directingthe Department of Transportation of State of New York to issue a highway work permit toFairchild Corporation and Stew Leonard's Farmingdale, LLC, subject to reasonable conditions inaccordance with Highway Law § 52, and substituting therefor a provision remitting thematter to the Department of Transportation of State of New York for a new determination of theapplication of Fairchild Corporation and Stew Leonard's Farmingdale, LLC, for a highway workpermit without regard to improper factors beyond the scope of Highway Law § 52; as somodified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly determined that the Department of Transportation of State ofNew York (hereinafter DOT) acted arbitrarily and capriciously in denying the application ofFairchild Corporation and Stew Leonard's Farmingdale, LLC (hereinafter together Fairchild), fora highway work permit (see CPLR 7803 [3]; Matter of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County,34 NY2d 222, 231 [1974]; cf. Matter of Ellis v Division of Hous. & CommunityRenewal of State of N.Y., 45 AD3d 594, 595 [2007]; Matter of Cohen v State of NewYork, 2 AD3d 522, 525 [2003]). In considering an application for a highway work permit,the statutory considerations set forth in Highway Law § 52 govern the scope of the analysisby DOT (see Matter of Flinter v State of N.Y. Dept. of Transp., 249 AD2d 304 [1998];see also 17 NYCRR 125.5). Here, the Supreme Court correctly determined that DOTimproperly considered factors beyond the statutory considerations set forth in Highway Law§ 52 (cf. Matter of Cohen v State of New York, 2 AD3d at 525; Matter ofFlinter v State of N.Y. Dept. of Transp., 249 AD2d 304 [1998]).
However, the Supreme Court erred in directing DOT to issue the highway work permit toFairchild. Fairchild did not seek such relief in the petition and a number of unresolved issuesexist before any permit could issue, including the fact that DOT admittedly never reviewedFairchild's traffic study. Moreover, DOT did not determine whether Fairchild needs or would beable to obtain an easement for its proposed southern access to and from the development toRoute 110 (see Matter of Cameron v Church, 286 AD2d 328 [2001]). Accordingly, theSupreme Court should have remitted the matter to DOT for a new determination of Fairchild'shighway work permit application without regard to improper factors beyond the scope ofHighway Law § 52. Fisher, J.P., Balkin, McCarthy and Leventhal, JJ., concur.