IN RE: Application of AMSTEL RECYCLING & CONCRETE CORP.

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

IN RE: Application of AMSTEL RECYCLING & CONCRETE CORP., et al., Petitioners-Appellants, For a Judgment, etc., v. The CITY OF NEW YORK, et. al., Respondents-Respondents.

Decided: October 25, 2001

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, RUBIN and BUCKLEY, JJ. Patrick W. Jones, for Petitioners-Appellants. Julie Steiner, for Respondents-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered May 3, 2000, which, to the extent appealed from, in a proceeding pursuant to CPLR article 78 to annul three determinations of respondent New York City Environmental Control Board, severed and dismissed petitioner's first and second causes of action, unanimously affirmed, without costs.

Petitioners correctly state that the issue of whether the facility operated by petitioner Amstel Recycling and Concrete Corp. constitutes a non-putrescible solid waste transfer station, subject to regulations under the New York City Administrative Code, § 16-130 et seq., was decided in a prior administrative determination.   We conclude, however, that, under the particular circumstances of this case, the flexibility accorded an administrative body to correct an erroneous interpretation of the law should displace the doctrines of res judicata and collateral estoppel (see, Allied Chem. v. Niagara Mohawk, 72 N.Y.2d 271, 276-277, 532 N.Y.S.2d 230, 528 N.E.2d 153, cert. denied 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777;  Matter of McKenna, 233 A.D.2d 704, 649 N.Y.S.2d 953, lv. denied 89 N.Y.2d 810, 656 N.Y.S.2d 738, 678 N.E.2d 1354;  Matter of Purnett v. Evans, 26 A.D.2d 396, 398, 274 N.Y.S.2d 800).   Waste transfer stations are heavily regulated because of their impact on local communities.   The record reveals that facilities comparable in their activity to those of petitioner have been classified by respondent Department of Sanitation as transfer stations requiring a permit pursuant to the provisions of the Administrative Code. In view of the City's interest in regulating these facilities, respondents should be permitted to ensure that there is uniform treatment of comparable facilities.   We note that the substantive issue of whether petitioners' facility is a transfer station subject to regulation has yet to be decided by the Environmental Control Board.