QUINN v. SEYMOUR

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of David S. QUINN, Petitioner, v. Joseph J. SEYMOUR, Commissioner, State of New York Executive Department Office of General Services, Samuel C. Sedam and Jane K. Sedam, Respondents.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P. J., PINE, WISNER, BURNS and LAWTON, JJ. Dirk A. Galbraith, petitioner. Lawrence A. Rappoport, for respondent Joseph J. Seymour, Commissioner, State of New York Executive Department, Office of General Services. Paul Bleakley, for respondents Samuel C. Sedam and Jane K. Sedam.

In this CPLR article 78 proceeding transferred to this Court pursuant to CPLR 7804(g), petitioner seeks to annul the determination that his dock and boat hoist interfere with the lake access of his neighbors, respondents Samuel C. Sedam and Jane K. Sedam, in violation of Navigation Law § 32, and must be repositioned.   Petitioner contends that 9 NYCRR 274.5, the regulation that sets forth the standards for resolution of a complaint under Navigation Law § 32, is unconstitutionally vague because it fails to provide objective standards for determining the boundaries of a littoral zone and whether a person is violating Navigation Law § 32 by the placement of a structure such as a dock or boat hoist.   We disagree.   The regulation, promulgated pursuant to Navigation Law § 32, provides for the application of well-established surveying methods that are sufficiently definite to apprise property owners of the methods for determining whether construction of a structure would interfere with the riparian/littoral rights of adjacent property owners (see generally, Matter of Slocum v. Berman, 81 A.D.2d 1014, 1015, 439 N.Y.S.2d 967, lv. denied 54 N.Y.2d 602, 443 N.Y.S.2d 1025, 426 N.E.2d 754, appeal dismissed 54 N.Y.2d 752, 443 N.Y.S.2d 1033, 426 N.E.2d 757).   The regulation, read in conjunction with Navigation Law § 32, prohibits interference with the free and direct access of any other person to the navigable waters of the State and sufficiently apprises a person of ordinary intelligence of the requirements for compliance (see generally, Ulster Home Care v. Vacco, 96 N.Y.2d 505, 731 N.Y.S.2d 910, 757 N.E.2d 764).   We further conclude that the determination is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

Determination unanimously confirmed with costs and petition dismissed.

MEMORANDUM: