Posted by: Patricia Salkin | September 10, 2020

NY Appellate Court Dismisses City’s Claims Challenging Surface Shaft Permit as Moot

This post was authored by Matthew Loescher, Esq.

In 2017, respondent Department of Environmental Conservation (“DEC”) granted respondent Cargill Incorporated a permit to construct a surface shaft. Following this, Petitioners commenced this CPLR article 78 proceeding challenging the DEC’s determination. During the proceeding, petitioners moved to compel the disclosure of certain discovery, but Supreme Court denied the motion. In 2019, the court dismissed the petition, resulting in this appeal by petitioners.

 On appeal, DEC contends that petitioners City of Ithaca, Town of Ithaca, Town of Ulysses and Village of Union Springs lacked capacity to sue because they are municipalities and, therefore, are prohibited from commencing a proceeding challenging the actions of the state. The court found that even if the above were true, the merits of the petition would still be properly before it given that other individuals, who were non-municipal entities, were named petitioners and DEC did not challenge their capacity to bring this proceeding. Moreover, during the pendency of the underlying proceeding and this appeal, the construction of the surface shaft had been completed to the point that it could not be safely halted and substantial construction costs had already been incurred. Additionally, there was no indication that petitioners promptly sought injunctive relief to maintain the status quo or that Cargill proceeded with the construction in bad faith or without the authority to do so. Based on the aforementioned, petitioners’ appeal was dismissed as moot.

 City of Ithaca v New York State Department of Environmental Conservation, 2020 WL 6493860 (NYAD 3 Dept. 9/10/2020)

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