| Matter of Green Thumb Lawn Care, Inc. v Iwanowicz |
| 2013 NY Slip Op 04139 [107 AD3d 1402] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Green Thumb Lawn Care, Inc., et al.,Appellants, v Peter M. Iwanowicz, Acting Commissioner of New York StateDepartment of Environmental Conservation, et al., Respondents. (Appeal No.1.) |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Andrew G. Frank of counsel), forrespondents-defendants-respondents.
Appeal from a judgment (denominated order and judgment) of the Supreme Court,Onondaga County (Brian F. DeJoseph, J.), entered October 13, 2011 in a CPLR article78 proceeding and declaratory judgment action. The judgment, inter alia, denied therequests of petitioners-plaintiffs for a declaratory judgment, and declared that 6 NYCRR325.40 terminated the authority of petitioners-plaintiffs to use notice waivers.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the declaration and dismissing that part of the amendedpetition/complaint seeking declaratory relief and as modified the judgment is affirmedwithout costs.
Memorandum: These consolidated appeals arise from an administrative proceedingin which the New York State Department of Environmental Conservation (DEC) allegedthat Green Thumb Lawn Care, Inc. (Green Thumb) and its president, John Knutson, hadviolated statutes and regulations by, inter alia, performing residential lawn care withouthaving a signed contract that specified the dates upon which pesticides would be applied.As a result of that administrative proceeding, the Acting Commissioner of the DEC ruledthat Green Thumb and Knutson violated ECL 33-1001, as well as the regulationpromulgated by the DEC with respect to that statute (see 6 NYCRR 325.40), and,inter alia, assessed a penalty. Petitioners-plaintiffs, Green Thumb and Knutson (hereafter,petitioners), commenced a combined CPLR article 78 proceeding and declaratoryjudgment action to challenge that ruling and, in appeal No. 1, they appeal from ajudgment that, inter alia, confirmed the Acting Commissioner's determination and issueda declaration in favor of respondents-defendants, the DEC and the Acting Commissioner(hereafter, respondents). Petitioners commenced a second CPLR article 78 proceeding tochallenge a policy statement issued by the DEC in 2005 and, in appeal No. 2, they appealfrom a judgment dismissing that petition.[*2]
With respect to appeal No. 1, petitioners contendthat the Acting Commissioner's determination that they violated the statute and regulationwas arbitrary and capricious, and thus that Supreme Court erred in confirming it. Wereject that contention. In general, judicial review of an administrative determination islimited to whether the administrative action is arbitrary and capricious or lacks a rationalbasis (see Matter of Concetta T.Cerame Irrevocable Family Trust v Town of Perinton Zoning Bd. of Appeals, 6AD3d 1091, 1092 [2004]; see generally Matter of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 231 [1974]). In a situation such as this, however, "where 'thequestion is one of pure statutory reading and analysis, dependent only on accurateapprehension of legislative intent, there is little basis to rely on any special competenceor expertise of the administrative agency and its interpretive regulations are therefore tobe accorded much less weight. And, of course, if the regulation runs counter to the clearwording of a statutory provision, it should not be accorded any weight' " (Matter of Lighthouse Pointe Prop.Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 176[2010]; see Matter of New YorkState Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18NY3d 289, 296 [2011]).
When petitioners applied the products at issue, the statute provided that "[p]rior toany commercial lawn application the applicator shall enter into a written contract withthe owner of the property or his agent specifying the approximate date or dates ofapplication, number of applications, and total cost for the service to be provided" (ECLformer 33-1001 [1]). In addition, the DEC regulations require that the written contractshall "specify the approximate date or dates of application or applications;. . . state the total cost of the commercial lawn application service to beprovided; . . . [and] be signed by both the pesticide applicator or businessproviding the commercial lawn application and the owner or owner's agent of theproperty to which the commercial lawn application is to be made; provided, however, thesignature of the owner or owner's agent is not required if the pesticide applicator orbusiness possesses a separate document that specifically evidences the owner or owner'sagent signature as acceptance of the written contract, such as a copy of a prepaymentcheck, in the exact amount specified in the written contract for the agreed-upon services"(6 NYCRR 325.40 [a] [1], [3], [6]).
The legislative history of the statute establishes that it was enacted for two purposes,to wit, to ensure that commercial lawn care businesses did not apply their productswithout first having a written contract that included the full price to be paid by theconsumer, and to ensure that residents were aware when possibly hazardous chemicalswere going to be applied to their properties. Based upon that history, and the unequivocalwording of the statute and regulation, the Acting Commissioner's conclusion thatpetitioners' agreement with the owners of the subject property did not meet eitherrequirement was not arbitrary or capricious. The total price to be paid for petitioners'services does not appear anywhere in the agreement, and petitioners concede that it wasnot the same price as was paid a year earlier pursuant to the contract that petitionerscontend was renewed. Furthermore, the dates of application on the document thatpetitioners sent to the property owner included ranges of dates that encompassed morethan half of the calendar year, and thus are patently not approximate dates of application.
Contrary to petitioners' further contention, the Acting Commissioner did not actarbitrarily or capriciously in concluding that petitioners were not permitted to seek ablanket waiver of the approximate dates of application. His conclusion that such waiverswould eviscerate one of the core purposes of the legislation is also consistent with theplain wording of the statute and the legislative intent, and thus is neither arbitrary orcapricious.
We agree with petitioners' further contention that the court erred in declaring therights of [*3]the parties and instead should havedismissed that part of the amended petition/complaint seeking declaratory relief. Wetherefore modify the judgment in appeal No. 1 accordingly. Petitioners sought adeclaration of the rights of the parties with respect to a 2002 consent order, and alsosought further declarations that petitioners had the right to obtain waivers of the right tonotification of the approximate dates upon which petitioners would apply products to theproperty of other customers. Pursuant to CPLR 3001, "[t]he supreme court may render adeclaratory judgment . . . as to the rights and other legal relations of theparties to a justiciable controversy." "A declaratory judgment action thus 'requires anactual controversy between genuine disputants with a stake in the outcome,' and may notbe used as 'a vehicle for an advisory opinion' " (Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d253, 253 [2006], appeal dismissed 9 NY3d 1003 [2007], quoting Siegel,Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:3 at259; see Ramunno v SkydeckCorp., 30 AD3d 1074, 1074 [2006]).
Here, the court, with the consent of the DEC, dismissed all charges related to allegedviolations of the 2002 consent order, and thus no active controversy remained withrespect to it. Petitioners' remaining requests seek a declaration that petitioners may act ina certain manner in the future when interacting with other, unidentified consumers, andthus "presented hypothetical issues concerning future events which may or may notoccur" (Matter of United Water New Rochelle v City of New York, 275 AD2d464, 466 [2000]). Consequently, no justiciable controversy was presented, and the courtwas required to dismiss the amended petition/complaint insofar it sought declaratoryrelief (see generally Megibow vCondominium Bd. of Kips Bay Towers Condominium, Inc., 38 AD3d 265, 266[2007]).
Contrary to petitioners' further contention, the court properly dismissed the CPLRarticle 78 petition in appeal No. 2. In that proceeding, petitioners challenged thepromulgation of the DEC's "Policy DSHM-PES-05-11," concerning "Compliance withCertain Provisions of Commercial Lawn Application Regulations" (2005 policy). Thecourt dismissed the proceeding on the ground that it was not ripe for judicial review. Thetest for ripeness is well settled, to wit, a determination must be final before it is subject tojudicial review (see CPLR 7801 [1]). "In order to determine whether an agencydetermination is final, a two-part test is applied. 'First, the agency must have reached adefinitive position on the issue that inflicts actual, concrete injury and[,] second, theinjury inflicted may not be prevented or significantly ameliorated by furtheradministrative action or by steps available to the complaining party' " (Matter of County of Niagara vDaines, 79 AD3d 1702, 1704 [2010], lv denied 17 NY3d 703 [2011],quoting Matter of BestPayphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d30, 34 [2005], rearg denied 5 NY3d 824 [2005]). Here, the ActingCommissioner declined to apply the 2005 policy to the determination at issue, concludingthat it was not yet in effect when petitioners applied the lawn care products at issue.Consequently, inasmuch as no " 'actual concrete injury' " has been inflicted and the injurywas in fact " 'prevented or significantly ameliorated by further administrative action' "(id.), the matter is not ripe for judicial review.
We have considered petitioners' remaining contentions, and conclude that they arewithout merit. Present—Scudder, P.J., Smith, Centra, Carni and Sconiers, JJ.