IN RE: Thomas BALL (2006)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Environmental Conservation, dated November 10, 2003, which granted the application of the respondents John Nickles and Beixedon Estate Property Owners' Association for a tidal wetlands permit, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Cohalan, J.), entered May 12, 2005, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 Where, as here, an administrative agency takes action without an evidentiary hearing, the standard of review is not whether there was substantial evidence in support of the determination (see CPLR 7803[4] ), but rather, whether the determination had a rational basis, and was not “arbitrary and capricious” (see CPLR 7803[3];  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 385, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809 N.Y.S.2d 98, lv. dismissed 7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798;  Matter of Poster v. Strough, 299 A.D.2d 127, 141-142, 752 N.Y.S.2d 326;  Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 120 A.D.2d 166, 169, 508 N.Y.S.2d 643).   Further, in a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination (see Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 386, 626 N.Y.S.2d 1, 649 N.E.2d 1145;  Flacke v. Onondaga Landfill Systems, 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282).

 At bar, the Supreme Court correctly found that the determination of the respondent the New York State Department of Environmental Conservation (hereinafter the DEC) dated November 10, 2003, to grant the application of the respondents John Nickles and Beixedon Estate Property Owners' Association for a tidal wetlands permit was neither arbitrary nor capricious and had a rational basis (see Matter of Karmel v. Board of Appeals of City of White Plains, 303 A.D.2d 507, 756 N.Y.S.2d 440;  Matter of Ficalora v. Planning Bd., 262 A.D.2d 320, 691 N.Y.S.2d 538;  Matter of Hingston v. New York State Dept. of Envtl. Conservation, 202 A.D.2d 877, 879, 609 N.Y.S.2d 446).   The conclusions presented by the parties' experts were conflicting, and the DEC's decision to rely on the conclusions of its experts did not render its determination arbitrary, capricious, or lacking in a rational basis (see Matter of Gladstone v. Zoning Bd. of Appeals of Inc. Vil. of Southampton, 13 A.D.3d 445, 785 N.Y.S.2d 697;  Matter of Seven Acre Wood St. Assoc. v. Town of Bedford, 302 A.D.2d 532, 533, 755 N.Y.S.2d 275;  Winston v. Freshwater Wetlands Appeals Bd., 254 A.D.2d 363, 678 N.Y.S.2d 654).

 Further, the Supreme Court properly declined to consider the petitioners' claims under the State Environmental Quality Review Act (ECL art. 8) that were raised for the first time in their reply papers (see Matter of Thomas v. Straub, 29 A.D.3d 595, 596, 818 N.Y.S.2d 90;  Matter of Roanoke Sand & Gravel Corp. v. Town of Brookhaven, 24 A.D.3d 783, 786, 809 N.Y.S.2d 95;   Crawford v. Kelly, 124 A.D.2d 1018, 508 N.Y.S.2d 961).