New York State Builders Ass'n, Inc. v. State

Citation414 N.Y.S.2d 956,98 Misc.2d 1045
PartiesApplication of the NEW YORK STATE BUILDERS ASSOCIATION, INC., Robert A. Wieboldt, Robert Hankin, Frederick A. Hartel, Edward J. Hamil, Joseph McCue, Joseph Margolis, Joseph Mufale, and S. Richard Simiele, Petitioners, for a declaratory judgment, and preliminary injunction, pursuant to article 7-A, State Finance Law (citizen-taxpayer actions), and for a judgment under article 78 of the Civil Practice Law and Rules, v. The STATE of New York, Robert Abrams, Attorney General of the State of New York, and James L. Larocca, Commissioner, New York State Energy Office, Respondents.
Decision Date22 February 1979
CourtUnited States State Supreme Court (New York)
Rosemary Nichols, Berlin, for petitioners
MEMORANDUM

De FOREST C. PITT, Justice.

Before this Court is a motion brought on by an order to show cause for a preliminary injunction as well as a final determination of an Article 78 proceeding and an action for a declaratory judgment pursuant to Article 7-A of the State Finance Law and Section 3001 of the CPLR. Respondents have raised the objection that the only issue discussed at oral argument before the signing of the order to show cause was the preliminary injunction. However, the order to show cause specifically states that respondents shall show cause why a declaratory judgment shall not be entered and why an order pursuant to Article 78 of the CPLR should not be granted on the return date of January 26, 1979, as well as the issue of a preliminary injunction. Both the final determination and the preliminary injunction are therefore, at least initially, before the Court.

Respondents have cross-moved for an order striking the note of issue and statement of readiness filed by the petitioner and for judgment dismissing the petition upon the grounds that the petition fails to state a cause of action in that the requirement of Section 205 of the State Administrative Procedure Act, which constitutes a condition precedent to judicial review of rules under Article 78 of the CPLR, has not been complied with; that the petition fails to state a cause of action pursuant to Article 8 of the Environmental Conservation Law and petitioners lack standing to sue under said Article 8 of the Environmental Conservation Law, the State Environmental Quality Review Act; that the petition fails to state a cause of action pursuant to Article 7-A of the State Finance Law; that the petition fails to state a cause of action against respondent, State of New York; and that the petition fails to state a cause of action against respondent, Robert Abrams, Attorney General of the State of New York. Since the cross-motion would necessarily affect the outcome of the primary motion it will be dealt with first.

Respondents have cross-moved to strike the note of issue insofar as it notices petitioners' action for a declaratory judgment pursuant to Article 7-A of the State Finance Law and petitioners' proceeding for a judgment under Article 78 of the CPLR for a hearing at a Special Term of this Court held on January 26, 1979. As stated above, the order to show cause clearly states that these issues be the subject of the hearing as well as the motion for a preliminary injunction. Section 7804(c) of the CPLR does not provide a specific time period in which to serve an answer to a petition. Rather it provides that if notice of petition is served upon the adverse party at least 20 days before the time at which the petition is noticed to be heard, the answer shall be served at least five days before the noticed date. The instant proceeding was brought on by an order to show cause which was served upon respondents eleven days before the proceeding was to be heard. Under such circumstances, an answer should have been served on or before the return date, as the order to show cause did not provide a different time for service of the answer. Section 123-c of the State Finance Law provides for an accelerated proceeding in citizen-taxpayer actions. Such actions must be brought on by an order to show cause. However, there is no specific provision for the time to answer in the statute or in the order to show cause served in the instant proceeding. An answer should have been served on or before the return date for final determination. The note of issue was therefore proper and should not be stricken.

Respondents have also cross-moved for an order striking the statement of readiness. The statement of readiness is required for Trial Term practice. Since the instant action and proceeding were brought on at Special Term, the statement of readiness is improper and should be stricken.

Respondents' cross-motion to dismiss on the ground that petitioners have not fulfilled the requirements of Section 205 of the State Administrative Procedure Act is totally improper. Section 205 of the State Administrative Act does not apply to the instant proceeding. Section 205 provides "such a special proceeding or action may not be maintained unless . . . the agency has not provided for the issuance of such declaratory rulings under Section 204." The State Energy Office has not provided for declaratory rulings pursuant to Section 204 of the State Administrative Procedure Act. That portion of the cross-motion must therefore be denied.

Respondents have cross-moved to dismiss that portion of the petition which seeks declaratory judgment pursuant to Article 7-A of the State Finance Law on the ground that the petition fails to state a cause of action under Article 7-A. Initially it is to be noted that the citizen-taxpayer action is applicable to wrongful expenditures or misapplication of state funds. All funds expended in the drafting, implementation, and enforcement of the new State Energy Conservation Construction Code are from Federal grants. Article 7-A therefore does not apply. However, there is an even more fatal flaw in petitioners' action. Petitioners seek to challenge an administrative action made under a proper delegation of power by the New York State Legislature on the ground that one aspect of agency action was allegedly arbitrary, capricious and contrary to law; the agency's failure to file an environmental...

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    ...in order to preserve and protect the environment for the people of the State of New York" (Matter of New York State Builders Assn. v. State of New York, 98 Misc.2d 1045, 1049, 414 N.Y.S.2d 956; see also, Weinberg, Practice Commentary, McKinney's Cons Laws of NY, Book 17 1/2, ECL C8-0109:6, ......
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1 books & journal articles
  • Better Equipping the Environmental Protection Act to Conserve Connecticut's Natural Resources
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 69, 1994
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