Omabuild USA No. 1, Inc. v. State

• Decision Date: 01 August 1994
• Citation: 615 N.Y.S.2d 424,207 A.D.2d 335
• Parties: OMABUILD USA NO. 1, INC., Appellant, v. STATE OF NEW YORK, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 424

615 N.Y.S.2d 424

207 A.D.2d 335

OMABUILD USA NO. 1, INC., Appellant, v. STATE OF NEW YORK, et al., Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 1, 1994.

Esseks, Hefter & Angel, Riverhead (Stephen R. Angel and Thomas F. Whelan, of counsel), for appellant.

G. Oliver Koppell, Atty. Gen., New York City (Peter H. Schiff and Michael S. Buskus, of counsel), for respondent.

Before BALLETTA, J.P., and PIZZUTO, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages against the State, the claimant appeals from an order of the Court of Claims (Silverman, J.), entered November 18, 1991, which dismissed the claim for failure to state a cause of action.

ORDERED that the order is affirmed, with costs.

Contrary to the appellant's contentions, the Court of Claims properly dismissed its claim. The decision of the New York State Department of Environmental Conservation to accept the application of the Town of East Hampton for "lead agency" status pursuant to the New York State Environmental Quality Review Act (hereinafter SEQRA) was a discretionary determination (see generally, 6 NYCRR 617.6). Thus, the State was protected from liability, notwithstanding the statutory waiver of immunity embodied in Court of Claims Act § 8 (see, Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, aff'd, 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866; Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182; Burgundy Basin Inn, Ltd. v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610).

We note that time limits for SEQRA review are directory, not mandatory (see, Matter of Seaboard Contr. & Material v. Department of Envtl. Conservation of State of N.Y., 132 A.D.2d 105, 108, 522 N.Y.S.2d 679; Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367, 376, 469 N.Y.S.2d 964, aff'd, 62 N.Y.2d 965, 479 N.Y.S.2d 341, 468 N.E.2d 296; see, e.g., Matter of Grossman v. Rankin, 43 N.Y.2d 493, 501, 402 N.Y.S.2d 373, 373 N.E.2d 267). Therefore, even if the Town's request for lead agency status was submitted two days after the comment period closed, the DEC was not required to reject the request as a matter of course.

The statements made by a DEC employee at a hearing before the Zoning Board of the Town of East Hampton were similarly privileged (see, Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163; Wiener v. Weintraub, 22 N.Y.2d 330, 292 N.Y.S.2d 667, 239 N.E.2d 540; Herzfeld & Stern v. Beck, 175 A.D.2d 689, 572 N.Y.S.2d 683; see, Allan & Allan Arts v. Rosenblum, 201 A.D.2d 136, 615 N.Y.S.2d 410 [decided herewith], and therefore the claims against the State stemming from his...