Plaintiffs' motion, correctly considered by the IAS Court as one for renewal since it was based upon newly submitted evidence (see, Bibeau v. Ward, 193 A.D.2d 875, 876; Segall v. Heyer, 161 A.D.2d 471, 473), was properly granted. Although renewal is generally not available where the newly submitted material was available at the time of the original motion (see, Foley v. Roche, 68 A.D.2d 558, 568), a court nonetheless has broad discretion to grant renewal and may in appropriate circumstances do so even upon facts known to the movant at the time of the earlier motion (see, U.S. Reins. Corp. v. Humphreys, 205 A.D.2d 187, 192; Martinez v. Hudson Armored Car Courier, 201 A.D.2d 359, 361; Matter of Salmon v. Flacke, 91 A.D.2d 867, 868, affd 61 N.Y.2d 798). Accordingly, it was not an improvident exercise of discretion for the IAS Court to have granted renewal where, as here, the new evidence offered in support of the application for renewal, although in existence at the time of the original motion, had not then been made known to plaintiffs' counsel by the attorneys who had defended the present plaintiffs in the underlying property damage action. Moreover, the court's grant of renewal under the circumstances at bar comports with the strong public policy in favor of resolving cases on the merits (Segall v. Heyer, supra, at 473).
That counsel did not question plaintiff as to whether his New York County address was his sole address, was also excusable. It has been held that even if information or documents are known to counsel but inadvertently omitted from the first motion, renewal should be granted (Matter of Salmon v. Flacke, 91 A.D.2d 867, 868, affd 61 N.Y.2d 798). Accordingly, the court should have exercised its discretion to grant plaintiff's motion for renewal.
Special Term also correctly upheld DEC's determination that the 1985 renewal application was a "minor project" not subject to a prepermit public hearing (see, 6 N.Y.CRR parts 360, 617, 621) and that it was exempt from the requirements of ECL 8-0109 (2) pursuant to ECL 8-0111 (5) (a), the so-called "grandfathering" provision (see, Matter of Salmon v. Flacke, 91 A.D.2d 867, 868, affd 61 N.Y.2d 798). It is well settled that a court may not substitute its own judgment for that of the agency responsible for making the determination.
SEQRA was enacted by chapter 612 of the Laws of 1975, and pursuant to section 4 of chapter 228 of the Laws of 1976, the act became effective September 1, 1976, except that ECL 8-0113, containing respondent's rule-making authority and responsibility, became effective September 1, 1975. Prior to the September 1, 1976 effective date, petitioner had operated its facility in the same manner it now seeks to continue operating it. Petitioner had sought all the permits and other "approval" then required. Under these circumstances, applying the plain meaning of the "grandfathering" clause (ECL 8-0111, subd 5, par [a]), petitioner's facility is excluded from the requirements of SEQRA (see Matter of Salmon v Flacke, 91 A.D.2d 867). Respondent seeks to use November 1, 1978 as the date for "grandfathering". That date is contained in section 8-0117 (subd 5, par [d]), which provides for "phased implementation" of the environmental impact statement requirement. The "grandfathering" clause, however, refers to the "effective date of this article" (ECL 8-0111, subd 5, par [a]), rather than the phased implementation date.
Here, the question presented is not, as petitioners suggest, whether the IP2 and IP3 are grandfathered pursuant to ECL 8–0111(5) (see, e.g. Salmon v. Flacke, 91 A.D.2d 867, 458 N.Y.S.2d 755 aff'd 61 N.Y.2d 798, 473 N.Y.S.2d 946, 462 N.E.2d 123; Northeast Solite Corp. v. Flacke, 91 A.D.2d 57, 458 N.Y.S.2d 291) but whether the criteria identified in the CMP applies to the licensing of IP2 and IP3. As stated, the CZMA expressly provides that license renewals are subject to consistency review and the CMP clearly announces that the State intends to participate in the review of license applications.
Here, the question presented is not, as petitioners suggest, whether the IP2 and IP3 are grandfathered pursuant to ECL 8-0111 (5) (see, e.g. Salmon v. Flacke, 91 A.D.2d 867 aff'd 61 N.Y.2d 798; Northeast Solite Corp. v. Flacke, 91 A.D.2d 57) but whether the criteria identified in the CMP applies to the licensing of 1P2 and IP3. As stated, the CZMA expressly provides that license renewals are subject to consistency review and the CMP clearly announces that the State intends to participate in the review of license applications.