Riverso v. N.Y. State Dep't of Envtl. Conservation

• Decision Date: 25 February 2015
• Citation: 2015 N.Y. Slip Op. 01644,3 N.Y.S.3d 414,125 A.D.3d 974
• Parties: In the Matter of Raphael RIVERSO, appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., respondents.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 974

3 N.Y.S.3d 414

2015 N.Y. Slip Op. 01644

In the Matter of Raphael RIVERSO, appellant,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 25, 2015

Reversed.

Frederick Eisenbud, Commack, N.Y., for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Bethany A. Davis Noll of counsel), for respondent New York State Department of Environmental Conservation.

Amy Mele, Town Attorney, New City, N.Y. (Daniel N. Kraushaar of counsel), for respondent Town of Clarkstown.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Environmental Conservation dated July 6, 2010, in effect, declining to amend a record of decision dated November 28, 1995, and a determination of the Town of Clarkstown dated July 30, 2010, selecting a remedial action for the Clarkstown Town Landfill inactive hazardous waste disposal site, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Hubert, J.), entered September 25, 2013, which granted the respondents' separate motions pursuant to CPLR 7804(f) and 3211 to dismiss the petition and, in effect, dismissed the proceeding as time-barred.

ORDERED that the order and judgment is reversed, on the law, with costs, the motions are denied, the petition is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the petition.

In 1983, a landfill operated by the respondent Town of Clarkstown was designated a class 2 “inactive hazardous waste disposal site” (Environmental Conservation Law § 27–1301[2] ). In 1989, the Town and the New York State Department of Environmental Conservation (hereinafter DEC) entered into an order on consent wherein the Town agreed to develop and implement a remedial program, to be approved and supervised by the DEC. After a remedial investigation and a feasibility study were conducted on the site, as required by the order on consent, the DEC issued a record of decision (hereinafter ROD) dated November 28, 1995, in which it selected a remedy for the site. Specifically, the DEC selected the remedy of capping the landfill, along with a portion of the petitioner's adjoining property, onto which the landfill had encroached. Although the Town implemented the remediation program on its property, remediation of the petitioner's affected property (hereinafter the subject property) stalled ( see Matter of Riverso v. Rockland County Solid Waste Mgt. Auth., 96 A.D.3d 764, 946 N.Y.S.2d 175; see also Matter of Riverso v. Town of Clarkstown, 244 A.D.2d 494, 664 N.Y.S.2d 337).

In 2007, due to the passage of time, it was agreed that the Town would conduct a supplemental remedial investigation of the subject property, pursuant to a provision of the order on consent, allowing the DEC to “require a modification and/or an amplification and expansion of the Remedial Investigation and Report” based upon “data or facts” showing that “further work [was] necessary.” To that end, the Town, through its retained engineer, created a work plan for the supplemental remedial investigation, which was submitted to the DEC for approval. The DEC twice disapproved the work plan, requesting changes. Once the work plan was approved, the Town's engineer conducted an investigation of the subject property, including a “field sampling program consisting of test pits, surface soil samples and soil borings.” The Town's engineer then generated an investigation report, setting forth in detail all of its findings.

In addition to assessing the quantity and quality of the remaining waste, the investigation report evaluated remedial alternatives. It concluded that the remedy selected in the ROD, i.e., capping the subject property, remained the proper remedy. The report rejected the viability of the remedy of evacuating the waste, which was preferred by the petitioner.

On July 6, 2010, the DEC, by letter to the Town, approved the investigation report, and, in effect, declined to amend the ROD by selecting a different remedy for the subject property. It further directed the Town to “provide an election as to which of the remedial alternatives it [would] undertake.” By letter dated July 30, 2010, the Town informed the DEC that it would cap the subject property.

The petitioner commenced this proceeding pursuant to CPLR article 78 against the DEC and the Town, challenging the determinations made on July 6, 2010, and July 30, 2010. The Town and the DEC separately moved pursuant to CPLR 7804(f) and 3211 to dismiss the petition, inter alia, as time-barred, asserting that the July 2010 letters did not constitute new determinations and that the petitioner, in effect, challenged the ROD adopted in 1995. The Supreme Court granted the motions and, in effect, dismissed the proceeding as time-barred.

“[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner (CPLR 217[1] ). An administrative determination becomes ‘final and binding’ when (1) the administrative agency reached a definitive position on the issue that inflicts actual, concrete injury; and (2) the injury inflicted may not be ‘significantly ameliorated by further administrative action or by steps available to the complaining party’ ” ( Matter of Better World Real Estate Group v. New York City Dept. of Finance, 122 A.D.3d 27, 39, 992 N.Y.S.2d 247, quoting Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38).

In general, a request for discretionary reconsideration does not serve to extend the statute of limitations or render an otherwise final determination nonfinal ( see Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 462, 940 N.Y.S.2d 540, 963 N.E.2d 1241; Matter of De Milio v. Borghard, 55 N.Y.2d 216, 220, 448 N.Y.S.2d 441, 433 N.E.2d 506; Matter...