Friedenburg v. New York State Dept. of Environmental Conservation

• Citation: 658 N.Y.S.2d 643,240 A.D.2d 407
• Parties: In the Matter of Stanley FRIEDENBURG, et al., Respondents, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant.
• Decision Date: 02 June 1997
• Court: New York Supreme Court Appellate Division

Page 643

658 N.Y.S.2d 643

240 A.D.2d 407

In the Matter of Stanley FRIEDENBURG, et al., Respondents, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 2, 1997.

Dennis C. Vacco, Attorney-General, New York City, (John H. Carley and Gregory J. Nolan, of counsel), for appellant.

Esseks, Hefter & Angel, Riverhead, (Stephen R. Angel and John M. Wagner, of counsel), for respondents.

Before ROSENBLATT, J.P., and MILLER, RITTER and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Commissioner of the New York State Department of Environmental Conservation, dated April 14, 1995, which denied the petitioners' application for a tidal wetlands permit, the New York State Department of Environmental Conservation appeals, by permission and as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), entered February 5, 1996, as denied as academic its motion to dismiss the original petition and denied its separate motion to dismiss so much of an amended petition as asserted a cause of action to annul the determination on the ground that such a cause of action is barred by the Statute of Limitations.

ORDERED that the order is modified by deleting the provision thereof which denied that branch of the separate motion which was to dismiss the cause of action asserted in the amended petition to annul the determination and by substituting therefor a provision granting that branch of the separate motion which was to dismiss the cause of action to annul the determination and denying the separate motion to dismiss in all other respects; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The respondent New York State Department of Environmental Conservation (hereinafter the DEC) denied the petitioners' request for a permit and related variances under the Tidal Wetlands Act (Environmental Conservation Law article 25), necessary to construct a single-family residence on real property located 566 feet from the waters of Shinnecock Bay, in Southampton, New York. Thereafter, the petitioners commenced a proceeding pursuant to CPLR article 78 asserting that the denial of their application by the DEC constituted a taking of their property without compensation. The petitioners requested, inter alia, that the DEC either commence condemnation proceedings to acquire their property or issue the requested permit. They also sought damages for a taking and a "temporary taking", as well as a declaration that ECL 25-0404 is unconstitutional to the extent that it fails to provide for damages for a "temporary taking". Rather than answering the petition, the DEC moved, inter alia, to dismiss the proceeding for failure to state a cause of action.

The petitioners thereafter served an amended petition in which they asserted, for the first time, an additional claim, which was to annul the determination of the DEC. The amended petition also asserted the same claims raised in the original petition: that the DEC determination constituted a taking of their property, that t...