IN RE: Raymond DEMERS (2004)

Appeal from a judgment and an amended judgment of the Supreme Court (Teresi, J.), entered September 19, 2002 and September 27, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Respondent denied petitioner's request to convert an application for a mining permit, that respondent had treated as a single application for six years, into two separate applications.   The issue on appeal is whether respondent's action constituted a final agency determination that is ripe for judicial review.

Petitioner conducts a sand and gravel mine on a 47-acre parcel in the Town of Dover, Dutchess County and, in 1995, sought to expand his mining operations on two parcels contiguous to the ongoing mine.   On one parcel he sought to conduct additional sand and gravel mining and on the other he wanted to open a stone quarry.   Petitioner alleges that he submitted separate applications for the two operations but that they were treated as a single application by respondent in 1995.¹  Proceedings on the application in the ensuing years included, among other things, designating respondent the lead agency under the State Environmental Quality Review Act (see ECL art. 8), issuing a positive declaration, public meetings and comments as part of scoping (see 6 NYCRR 617.8) and petitioner's draft environmental impact statement being rejected by respondent as incomplete.

In 2001, petitioner sought to have the request to expand the sand and gravel mine considered separately by respondent from the proposed stone quarry.   Respondent denied the request and petitioner commenced this CPLR article 78 proceeding seeking to compel separate review of the mining projects.   Respondent filed a preanswer motion to dismiss upon the ground that the matter was not ripe for judicial review because respondent had not made a final determination on petitioner's application.   Supreme Court granted respondent's motion. Petitioner appeals.

 We affirm.   In the absence of a final determination, an agency's action is not ripe for judicial review (see Matter of American Tr. Ins. Co. v. New York State Dept. of Motor Vehs., 305 A.D.2d 840, 842-843, 762 N.Y.S.2d 427 [2003];  Matter of Sour Mtn. Realty v. New York State Dept. of Envtl. Conservation, 260 A.D.2d 920, 921-922, 688 N.Y.S.2d 842 [1999], lv. denied 93 N.Y.2d 815, 697 N.Y.S.2d 562, 719 N.E.2d 923 [1999] ).   An agency's action is considered final for purposes of review when a pragmatic evaluation reveals a definitive position that inflicts actual harm (see Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453, 672 N.Y.S.2d 281, 695 N.E.2d 232 [1998] ).   Even when ultimate resolution of a matter is still pending, a determination within the context of that matter may be “final” if the governmental entity acts beyond its statutory authority and causes injury (see Matter of Gordon v. Rush, 100 N.Y.2d 236, 243, 762 N.Y.S.2d 18, 792 N.E.2d 168 [2003];  cf. Aluminum Co. of Am. v. United States, 790 F.2d 938, 942 [1986] ).

We initially note that petitioner did not judicially contest in 1995 respondent's determination to treat the matter as a single application.   In fact, petitioner participated in the single application procedure for six years.   That single application is still under consideration and respondent's determination thereon may “render the disputed issue * * * academic” (Matter of Essex County v. Zagata, supra at 454, 672 N.Y.S.2d 281, 695 N.E.2d 232).   Respondent's decision not to split an application six years into the process is not a final determination on the merits of the pending application.   Accordingly, we conclude that Supreme Court properly dismissed the petition.

ORDERED that the judgment and amended judgment are affirmed, without costs.

FOOTNOTES

1.   We note that the record contains only a single application made in February 1995 that combines the two requests.   However, an affidavit from respondent indicates that this application was rejected as incomplete and that a subsequent application was made.   Petitioner contends that separate applications for the two projects were submitted and, for purposes of this appeal, we accept petitioner's contention as correct.

LAHTINEN, J.

CREW III, J.P., MUGGLIN, ROSE and KANE, JJ., concur.