You are here: / Environmental Law
, ,

DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED.

The First Department, in an action seeking reimbursement for environmental cleanup costs, determined the policy exclusion from coverage of lead emissions controlled, even though the soil was also contaminated with lead paint, which was not excluded from coverage:

​

In this case, not only did the damage result from different sources, i.e., lead emissions and lead paint, but, also, one source is excluded from coverage and the other is not. However, the damage resulting from either source is not readily divisible from the damage resulting from the other. The combined effect of the lead emissions and the lead paint was soil contamination – of the same soil. To the extent a particular area was contaminated solely by lead paint, it was not (and could not have been) included in the EPA’s remediation efforts (see 42 USC § 9604). Moreover, claimant would not have had to pay for any damage – including lead paint damage – if not for the accompanying pollution (see 42 USC § 9607). Thus, the entire claim is barred by the pollution exclusions. Matter of Midland Ins. Co., 2017 NY Slip Op 05171, 1st Dept 6-22-17

INSURANCE LAW (ENVIRONMENTAL CLEANUP, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)/ENVIRONMENTAL LAW (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)POLLUTION EXCLUSIONS (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)

,

ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED.

The Second Department determined the zoning board of appeals properly issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) and properly issued a substantial setback variance. The court explained its limited role in assessing the propriety of actions taken by zoning boards:

​

“[I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . While courts must review the record to determine if the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination … , “[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence” … .

Contrary to the petitioner’s contention, the Planning Board took the required hard look at the project proposal and set forth well-reasoned explanations for finding that the project would not result in any significant adverse environmental impacts. …

​

In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” … .

Here, the record establishes that the Zoning Board considered and properly weighed the relevant factors in determining to grant the area variance. Although the variance is indisputably substantial, there is no evidence that granting the variance would produce an undesirable change in the character of the neighborhood or have an adverse effect or impact on the physical and environmental conditions in the neighborhood or district, that the benefit to the applicant could be achieved by other means, or that the applicant’s difficulty was self-created … . Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 2017 NY Slip Op 04112, 2nd Dept 5-24-17

ZONING (ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/ENVIRONMENTAL LAW (SETBACK VARIANCE, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/VARIANCES (ZONING, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)

, ,

NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK.

The First Department determined New York law applies to discovery from PriceWaterhouseCoopers in New York’s suit against Exxon alleging fraud in connection with the company’s knowledge of the causes and effects of global warming. PriceWaterhouseCoopers argued Texas law applied. Texas has an accountant privilege, New York does not:

​

In this proceeding arising from an underlying investigation by the NYAG [attorney general]into alleged fraud by respondent Exxon concerning its published climate change information, the motion court properly found that the New York law on privilege, rather than Texas law, applies, and that New York does not recognize an accountant-client privilege.

We reject Exxon’s argument that an interest-balancing analysis is required to decide which state’s choice of law should govern the evidentiary privilege. Our current case law requires that when we are deciding privilege issues, we apply the law of the place where the evidence will be introduced at trial, or the place where the discovery proceeding is located … . In light of our conclusion that New York law applies, we need not decide how this issue would be decided under Texas law. Matter of People of the State of New York v PriceWaterhouseCoopers, LLP, 2017 NY Slip Op 04071, 1st Dept 5-23-17

 

CIVIL PROCEDURE (NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/PRIVILEGE (ACCOUNTANT PRIVILEGE, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/DISCOVERY (CIVIL PROCEDURE, CHOICE OF LAW, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/PRIVILEGE (ACCOUNTANT PRIVILEGE, CHOICE OF LAW, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/ACCOUNTANT PRIVILEGE (NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/CHOICE OF LAW (ACCOUNTANT PRIVILEGE, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/ENVIRONMENTAL LAW  (EXXON, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/GLOBAL WARMING (EXXON, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/EXXON (GLOBAL WARMING, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)

, , ,

WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT.

The Second Department determined Supreme Court properly concluded the Water District’s planned replacement of a drinking water supply tank was immune from the village code and did not trigger the State Environmental Quality Review Act (SEQRA):

​

In Matter of County of Monroe (City of Rochester) (72 NY2d 338), the Court of Appeals addressed the applicability of local zoning laws where a conflict exists between two governmental entities. The Court therein articulated “a balancing of public interests” test which requires the consideration of various factors in order to determine whether an entity should be granted immunity from local zoning requirements … . These factors include “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” … .

Here, the Village failed to set forth any basis for its contention that the application of the Monroe balancing test is in the exclusive province of the Village, or host entity. In fact, the Court of Appeals did not specify the entity initially responsible for evaluating the competing interests … . Further, the Supreme Court properly employed the “balancing of public interests” test and correctly determined that the proposed construction plan is immune from the Village’s local laws … .

The Supreme Court also properly found, in effect, that the Water District’s determination that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind” (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement, was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion … . Incorporated Vil. of Munsey Park v Manhasset-Lakeville Water Dist., 2017 NY Slip Op 03934, 2nd Dept 5-17-17

​

ZONING (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/ENVIRONMENTAL LAW (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MONROE BALANCING TEST (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/WATER TANKS (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MUNICIPAL LAW  (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)

, ,

PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING.

The Fourth Department, reversing Supreme Court, determined that the negative declaration by the City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act [SEQRA] should have been annulled. The Fourth Department first held that the parties had standing to contest the negative declaration because of their proximity to the subject construction site. In the face of the acknowledged contamination of the soil at the site, the negative declaration did not set forth or document the underlying reasoning:

We … agree with petitioners that the negative declaration did not contain a ” reasoned elaboration’ of the basis for [the] determination” … . “It is well settled that SEQRA’s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency’s determination of significance” … . The lead agency must “set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation” … . The purpose of that regulation “is to focus and facilitate judicial review and . . . to provide affected landowners and residents with a clear, written explanation of the lead agency’s reasoning at the time the negative declaration is made” … . Here, despite the undisputed presence of preexisting soil contamination on the project site, the negative declaration set forth no findings whatsoever with respect to that contamination. The document containing the purported reasoning for the lead agency’s determination of significance, which was prepared subsequent to the issuance of the negative declaration, does not fulfill the statutory mandate … . Contrary to respondents’ contention, the developer’s promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA … . Matter of Rochester Eastside Residents for Appropriate Dev., Inc. v City of Rochester, 2017 NY Slip Op 03665, 4th Dept 5-5-17

ENVIRONMENTAL LAW (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/ZONING (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/NEGATIVE DECLARATION (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)

PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING.

The Third Department determined petitioner lacked standing to challenge the statewide ban on fracking:

​

In 2010, then Governor David Paterson issued an executive order prohibiting respondent Department of Environmental Conservation (hereinafter DEC) from issuing permits for the use of high volume hydraulic fracturing (hereinafter HVHF) for the stimulation of oil and gas wells pending the completion of a supplemental generic environmental impact statement under the State Environmental Quality Review Act (see ECL art 8). That order was extended by Governor Andrew Cuomo in 2011 and remained in effect when petitioner, in December 2014, first wrote to respondent Commissioner of Environmental Conservation seeking permission to conduct HVHF on his properties in Allegany and Monroe Counties. …

​

We agree with Supreme Court that petitioner lacked standing to challenge the statewide prohibition on HVHF. “Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” … . In order to have standing in a land use matter, petitioner must demonstrate, among other things, that he “would suffer direct harm, injury that is in some way different from that of the public at large” … .

At the time of commencement of this proceeding, petitioner had not applied for a permit nor offered any proof that he met any of the requirements to obtain a permit. He offered no proof of any plans to move forward with the process and conceded that any plans would necessarily involve commitments by oil and gas exploration companies, of which he had none. Petitioner’s standing at the time of filing was no different than that of any landowner in the state; thus he lacked standing to challenge the determination … . Matter of Morabito v Martens, 2017 NY Slip Op 02863, 3rd Dept 4-13-17

ENVIRONMENTAL LAW (PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING)/FRACKING (PETITIONER LACKED STANDING TO CONTEST BAN ON FRACKING)

,

PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE.

The Fourth Department determined the respondent town planning board acted arbitrarily and capriciously when it denied petitioner’s challenge to the finding his property was within the boundaries of a woodlot environmental protection overlay district (EPOD). The Fourth Department held that the respondent was obligated to consider the EPOD criteria laid out in the Town Code and failed to do so:

Petitioner owns property located within a Woodlot Overlay Protection District in the Town of Irondequoit, as set forth on the Woodlots Map of the Town of Irondequoit. Irondequoit Town Code (Town Code) § 235-43 provides that the locations and boundaries of an environmental protection overlay district (EPOD) shall be delineated on the official set of maps, but further states that those maps “shall be used for reference purposes only and shall not be used to delineate specific or exact boundaries of the various overlay districts. Field investigations and/or other environmental analyses may be required in order to determine whether or not a particular piece of property is included within one or more of the overlay districts.” Section 235-44 then provides that the “Town Department of Planning and Zoning shall be responsible for interpreting [EPOD] boundaries based on an interpretation of the Official Town of Irondequoit EPOD Maps, as well as the use of various criteria set forth in this article for determining such district boundaries.” For a Woodlot EPOD, those criteria are set forth at section 235-53 (B) of the Town Code and include, inter alia, that the property have “communities” of certain species of trees. Finally, section 235-44 provides that “[a]ppeals from a determination of the Town Department of Planning and Zoning regarding boundaries of overlay districts shall be made to the Town Planning Board in accordance with the public hearing procedures.” * * *

We conclude that petitioner stated a claim that respondent acted arbitrarily and capriciously in denying the appeal because the criteria set forth in Town Code § 235-53 (B) were not considered by respondent. Based on Town Code §§ 235-43 and 235-44, respondent is responsible for interpreting the boundary of the particular Woodlot EPOD encompassing petitioner’s property, based on the criteria set forth in Town Code … . Matter of Gilbert v Planning Bd. of Town of Irondequoit, 2017 NY Slip Op 02210, 4th Dept 3-24-17

 

ZONING (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/ENVIROMENTAL LAW (ENVIRONMENTAL PROTECTION OVERLAY DISTRICT, (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/PLANNIG BOARD (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)

, ,

ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW WAS PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS.

The Second Department, reversing Supreme Court, determined the town’s action pursuant to the Environmental Conservation Law seeking reimbursement for litigation costs incurred in defense of discrimination suits was properly and timely brought. Supreme Court had ruled the town should have brought an Article 78 action in Supreme Court:

In 1991, the New York State Legislature adopted article 44 of the Environmental Conservation Law (hereinafter the Greenway legislation), which created the Hudson River Valley Greenway (hereinafter the Greenway). The purpose of this article was to “protect and enhance the special places of scenic, cultural and ecological importance” in the Hudson River Valley (ECL 44-0101). Among other things, the Greenway legislation created a regional planning council and gave communities within its range the opportunity to enter into the “Greenway Compact,” a voluntary regional compact among municipalities to facilitate cooperative planning (see ECL 44-0103[2], [4]; 44-0119). To encourage communities to participate in the compact, the State of New York agreed that participating communities (as defined by ECL 44-0103[10]) would be entitled to indemnification in actions arising from their participation in the compact (see ECL 44-0119[7]). In 1992, this provision was amended to limit the indemnification in actions alleging, among other things, unlawful discrimination. The amendment provided that communities would be entitled to reimbursement for all reasonable attorneys’ fees and litigation expenses only if they prevailed in the underlying action. * * *

… ECL 44-0119(7) speaks of reimbursement and indemnification, and expressly states that, “[i]n any claim against a participating community of unlawful discriminatory practice, the attorney general shall not represent” the Town. Instead, pursuant to ECL 44-0119(7), if the Town prevails in litigating against “any claim” of unlawful discriminatory practice, it “shall” be reimbursed by the State for all reasonable attorneys’ fees and litigation expenses incurred in the defense of the action. … [T]he gravamen of the Town’s claim herein was for reimbursement of attorneys’ fees and litigation costs incurred by it in the defense of the two subject actions. The Town’s claim at bar is one for money damages against the State—a claim that was timely brought in the Court of Claims, which has exclusive jurisdiction of such matters … . Town of Rhinebeck v State of New York, 2017 NY Slip Op 00502, 2nd Dept 1-25-17

 

COURT OF CLAIMS (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/MUNICIPAL LAW (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/ENVIRONMENTAL LAW (ENVIRONMENTAL CONSERVATION LAW, ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)

A COURT’S LIMIITED REVIEW POWERS RE AN AGENCY’S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT ASSESSMENT CLARIFIED, SUPREME COURT’S REJECTION OF AGENCY FINDINGS REVERSED. 

The First Department, over an extensive dissent, reversing Supreme Court, determined the Department of Health (DOH) had given the requisite “hard look” at air quality and noise mitigation issues for a school near a construction site. The Department of Health had approved the measures pursuant to a review under the State Environmental Quality Review Act (SEQRA). The First Department took pains to explain the limited powers of court-review of an agency finding:

It is axiomatic that judicial review of an agency determination under the State Environmental Quality Review Act (SEQRA) is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . Moreover, “[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” … . Since it is the responsibility of the agency to analyze reports and other documents submitted to it, “it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, [w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency, for it is not their role to “weigh the desirability of any action or [to] choose among alternatives”‘” … .

Thus, the court’s province is to “assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . In this regard, “[d]issatisfaction with an agency’s proposed mitigation measures is not redressable by the courts so long as those measures have a rational basis in the record” … . Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 00383, 1st Dept 1-19-17

ENVIRONMENTAL LAW (A COURT’S LIMIITED REVIEW POWERS RE AN AGENCY’S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT’S REJECTION OF AGENCY FINDINGS REVERSED)/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, A COURT’S LIMIITED REVIEW POWERS RE AN AGENCY’S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT’S REJECTION OF AGENCY FINDINGS REVERSED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (A COURT’S LIMIITED REVIEW POWERS RE AN AGENCY’S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT’S REJECTION OF AGENCY FINDINGS REVERSED)

SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY.

The Second Department determined plaintiff was entitled to summary judgment under the Navigation Law for damages caused by on oil spill on plaintiff’s property. Defendant did not show the oil could not have reached surface water or groundwater:

The Supreme Court correctly determined that the plaintiff made a prima facie showing of her entitlement to judgment as a matter of law by demonstrating that an employee of the appellant overfilled the plaintiff’s oil tanks and discharged oil onto the plaintiff’s premises, and that the plaintiff’s property was damaged as a result of the discharge … . The appellant failed to raise a triable issue of fact in opposition by demonstrating that it did not spill oil “into the waters of the state or onto lands from which it might flow or drain into said waters” … . Contrary to the appellant’s contention, it was not sufficient for it to merely demonstrate that the oil spill on the plaintiff’s property did not actually reach the surface or groundwater. It was required to also demonstrate that the oil spill could not have done so … . Zincke v Pacific Energy Corp., 2017 NY Slip Op 00341, 2nd Dept 1-18-17

ENVIRONMENTAL LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)/NAVIGATION LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)/OIL SPILL (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy