ARTICLE 78 NYSDEC MOTION TO DISMISS DENIED BASED ON ISSUES OF FACT REGARDING BROWNFIELDS PROCEDURES
ARTICLE 78 - CPLR section 7804(f) MOTION TO DISMISS DENIED
New York State Department of Environmental Conservation made a motion to dismiss Petitioner Frederick Fogelman’s Article 78 to have his land designated a “Brownfield clean-up program”. The NYSDEC had written to Mr. Fogelman on February 22, 2005 that his application to have his land designated a Brownfield was denied. Thereafter, Fogelman argued that the DEC did not issue a final determination. Petitioner argued that the DEC letter was only a single step in a continuing review. The attorney claimed that Fogelman continued to correspond and on July 20, 2006 the NYSDEC’s attorney sent correspondence claiming that the February 22 correspondence from the agency was its final determination.
The court held that a motion to dismiss under Article 7804(f) must determine whether Petitioner has stated a cause of action. If one has been stated the Court next looks to the controlling statute of limitations statute which is CPLR § 217 which states that a four-month period to appeal runs from the time the determination to be reviewed becomes final and binding upon the petitioner. If circumstances are unclear the statute begins to run when the party knows or should have known that it was agreed by the determination. In this case, the court held that issues of fact surrounding the NYSDEC denial and the procedures for making determinations by NYSDEC would favor the petitioner and that in since there were issues of fact regarding whether the denial was final and the exact NYSDEC procedures were unclear that the NYSDEC motion to dismiss must be denied.
