| Matter of Patel v Board of Trustees of Inc. Vil. ofMuttontown |
| 2014 NY Slip Op 01756 [115 AD3d 862] |
| March 19, 2014 |
| Appellate Division, Second Department |
| In the Matter of Manilal Patel et al.,Appellants, v Board of Trustees of Incorporated Village of Muttontown et al.,Respondents. |
—[*1] Leventhal, Cursio, Mullaney & Sliney, LLP, Roslyn, N.Y. (Steven G. Leventhal ofcounsel), for respondent Board of Trustees of Incorporated Village of Muttontown. Murphy & Lynch, P.C., East Norwich, N.Y. (Vincent T. Apicella of counsel), forrespondent Jewish Congregation of Brookville.
In a proceeding pursuant to CPLR article 78 to review a determination of the Boardof Trustees of the Incorporated Village of Muttontown dated April 12, 2011, adopting anenvironmental findings statement pursuant to the State Environmental Quality ReviewAct (ECL art 8), in connection with applications for a special use permit and site-planapproval, the petitioners appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Parga, J.), entered February 14, 2012, as, after the denialof those branches of the separate motions of the Board of Trustees of the IncorporatedVillage of Muttontown and the Jewish Congregation of Brookville which were todismiss the petition on the ground that the matter was not ripe for adjudication, in effect,denied the petition and directed that the proceeding be dismissed.
Ordered that on the Court's own motion, the notice of appeal from the order isdeemed to be an application for leave to appeal from the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, the determination in the order denying those branches of the separatemotions of the Board of Trustees of the Incorporated Village of Muttontown and theJewish Congregation of Brookville which were to dismiss the petition on the ground thatthe matter was not ripe for adjudication is vacated, and those branches of the motions aregranted.
The Jewish Congregation of Brookville (hereinafter the Congregation) applied to theBoard of Trustees of the Incorporated Village of Muttontown (hereinafter the Board) fora special use permit and site-plan approval in connection with a development project.The Board determined that the project would have a significant effect on theenvironment and, pursuant to its obligations under the State Environmental QualityReview Act (ECL art 8 [hereinafter SEQRA]), it circulated a final environmental impactstatement (hereinafter FEIS). On April 12, 2011, the Board adopted [*2]the findings statement required by the regulationsimplementing SEQRA (see 6 NYCRR 617.11), among other things, certifyingthat "consistent with social, economic and other essential considerations from among thereasonable alternatives available, the action is one that avoids or minimizes adverseenvironmental impacts to the maximum extent practicable, and that adverseenvironmental impacts will be avoided or minimized to the maximum extent practicableby incorporating as conditions to the decision those mitigative measures that wereidentified as practicable" (6 NYCRR 617.11 [d] [5]). Based upon the findings statement,the Board approved the FEIS. Prior to the Board's determination as to whether the specialuse permit sought by the Congregation should be issued and the proposed site planapproved, the petitioners, who live near the project site, commenced this proceedingpursuant to CPLR article 78 to review the determination adopting the SEQRA findingsstatement. The Board and the Congregation (hereinafter together the respondents) eachmoved to dismiss the petition on the ground that the dispute was not ripe foradjudication. The Supreme Court denied the motions, and thereupon concluded that thechallenged determination was not arbitrary and capricious, affected by error of law, ormade in violation of lawful procedure. It thus, in effect, denied the petition on the meritsand directed that the proceeding be dismissed. The petitioner appeals. The respondentsargue that dismissal was appropriate, and that lack of ripeness constitutes an appropriatealternative basis for the dismissal (see Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539, 544-545 [1983]).
An action taken by an agency pursuant to SEQRA may be challenged only whensuch action is final (see CPLR 7801 [1]). An agency action is final when thedecisionmaker arrives at a " 'definitive position on the issue that inflicts an actual,concrete injury' " (Stop-The-Barge v Cahill, 1 NY3d 218, 223 [2003],quoting Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998]). Theposition taken by an agency is not definitive and the injury is not actual or concrete if theinjury purportedly inflicted by the agency could be prevented, significantly ameliorated,or rendered moot by further administrative action or by steps available to thecomplaining party (see Stop-The-Barge v Cahill, 1 NY3d at 223; Matter ofEssex County v Zagata, 91 NY2d at 453-454).
Here, the issuance of a SEQRA findings statement did not inflict injury in theabsence of an actual determination of the subject applications for a special use permitand site-plan approval and, thus, the challenge to the adoption of the findings statementis not ripe for adjudication (seeMatter of Wallkill Cemetery Assn., Inc. v Town of Wallkill Planning Bd., 73 AD3d1189, 1190 [2010]; see alsoMatter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317[2006]; Matter of Guido vTown of Ulster Town Bd., 74 AD3d 1536, 1537 [2010]; Matter of Southwest OgdenNeighborhood Assn. v Town of Ogden Planning Bd., 43 AD3d 1374,1374-1375 [2007]). Therefore, the Supreme Court should have granted those branches ofthe respondents' separate motions which were to dismiss the petition on the ground thatthe matter is not ripe for adjudication.
We note that the Supreme Court, after denying the respondents' motions to dismissthe petition, should not have disposed of the proceeding on the merits. Rather, theSupreme Court, prior to addressing the merits, should have directed the respondents toserve and file answers to the petition, directed the Board to serve and file the fulladministrative record, and permitted the petitioners to renotice the matter for disposition(see CPLR 7804 [e], [f]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of GreenwoodLake, 77 AD3d 831, 833 [2010]). However, since we have concluded that theSupreme Court should have granted those branches of the respondents' separate motionswhich were to dismiss the petition on the ground that the matter is not ripe foradjudication, we decline to remit the matter to the Supreme Court, Nassau County, forthe service and filing of an answer and the administrative record, and the renoticing ofthe matter for disposition.
In light of our determination, the parties' remaining contentions need not beaddressed. Mastro, J.P., Lott, Austin and Roman, JJ., concur.