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Matter of James H. Rambo, Inc. v. Jorling

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1991
177 A.D.2d 577 (N.Y. App. Div. 1991)

Opinion

November 12, 1991


Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The petitioner challenges the Commissioner's determination that it constructed a bulkhead without a permit in violation of the Tidal Wetlands Act (ECL art 25). It is well established that upon judicial review of the evidentiary support for a determination made by an administrative body after a hearing, the court's consideration is limited to whether the determination is supported by substantial evidence (see, CPLR 7803; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176; Matter of Papadopoulos v. Jorling, 151 A.D.2d 764). It is equally well settled that an agency's interpretation and construction of its own regulations and the legislation under which it functions will be given special deference by the courts if that construction is not irrational or unreasonable (see, Matter of Howard v. Wyman, 28 N.Y.2d 434, 438; Matter of American Tr. Ins. Co. v. Corcoran, 105 A.D.2d 30, 32, affd 65 N.Y.2d 828; Matter of Greenthal Co. v. State Div. of Hous. Community Renewal, 126 Misc.2d 795, 799; Matter of Charles v. Regan, 126 Misc.2d 333, 334; Matter of City of New York v. Blum, 121 Misc.2d 982, 982-989). The evidence elicited at the hearing supports a finding that the structure in question falls within the statutory definition of "regulated activity" or use "29" of 6 NYCRR 661.5 (b), both of which require a permit. Therefore, the respondent's conclusion that the petitioner's activity required a permit was not irrational.

The petitioner contends that the determination must be set aside because the respondent rendered a decision more than 60 days after the close of the record, including receipt of the transcript, in violation of 6 NYCRR 622.13, 622.14 and 622.15. The respondent did not render a decision until September 28, 1989, almost two years after the conclusion of the hearing on April 1, 1987, and the receipt of the transcript on October 1, 1987. Although the regulations set forth time limitations for preparing and submitting a hearing report and rendering a decision, there is nothing in the language of those regulations which would indicate that those time limitations are mandatory. Accordingly, we conclude that the time limits are merely directory. Therefore, the delay in reaching a determination did not render it invalid (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 171, 172; Matter of King v. Carey, 57 N.Y.2d 505, 512-513; Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816, 817-818; Matter of Grossman v. Rankin, 43 N.Y.2d 493, 501; Matter of Gray v. Scully, 148 A.D.2d 609, 610; Matter of County of Suffolk v. Gioia, 96 A.D.2d 220, 224). Balletta, J.P., Rosenblatt, Ritter and Copertino, JJ., concur.


Summaries of

Matter of James H. Rambo, Inc. v. Jorling

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1991
177 A.D.2d 577 (N.Y. App. Div. 1991)
Case details for

Matter of James H. Rambo, Inc. v. Jorling

Case Details

Full title:In the Matter of JAMES H. RAMBO, INC., Petitioner, v. THOMAS C. JORLING…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 12, 1991

Citations

177 A.D.2d 577 (N.Y. App. Div. 1991)
576 N.Y.S.2d 292

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