Opinion
December 31, 1998
Appeal from Judgment of Supreme Court, Erie County, Sconiers, J. — CPLR art 78.
Judgment unanimously affirmed with costs. Memorandum: Petitioner appeals from a judgment dismissing its petition challenging the issuance of a positive declaration ( 6 NYCRR 617.2 [ac]) by respondent. Supreme Court properly held that "the issuance of a positive declaration is not final agency action subject to CPLR article 78 review" ( Matter of Rochester Tel. Mobile Communications v. Ober, 251 A.D.2d 1053, 1054). A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art 8) and therefore not ripe for judicial review ( see, Matter of Rochester Tel. Mobile Communications v. Ober, supra, at 1054, citing Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, lv denied 90 N.Y.2d 803). Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration. Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position ( see, Matter of Essex County v. Zagata, 91 N.Y.2d 447, 454).
Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.