Opinion
August 1, 1994
Appeal from the Court of Claims (Silverman, J.).
Ordered that the order is affirmed, with costs.
Contrary to the appellant's contentions, the Court of Claims properly dismissed its claim. The decision of the New York State Department of Environmental Conservation to accept the application of the Town of East Hampton for "lead agency" status pursuant to the New York State Environmental Quality Review Act (hereinafter SEQRA) was a discretionary determination (see generally, 6 NYCRR 617.6). Thus, the State was protected from liability, notwithstanding the statutory waiver of immunity embodied in Court of Claims Act § 8 (see, Rottkamp v. Young, 21 A.D.2d 373, affd 15 N.Y.2d 831; Tango v. Tulevech, 61 N.Y.2d 34; Burgundy Basin Inn v. State of New York, 47 A.D.2d 692).
We note that time limits for SEQRA review are directory, not mandatory (see, Matter of Seaboard Contr. Material v Department of Envtl. Conservation, 132 A.D.2d 105, 108; Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367, 376, affd 62 N.Y.2d 965; see, e.g., Matter of Grossman v. Rankin, 43 N.Y.2d 493, 501). Therefore, even if the Town's request for lead agency status was submitted two days after the comment period closed, the DEC was not required to reject the request as a matter of course.
The statements made by a DEC employee at a hearing before the Zoning Board of the Town of East Hampton were similarly privileged (see, Toker v. Pollak, 44 N.Y.2d 211; Wiener v Weintraub, 22 N.Y.2d 330; Herzfeld Stern v. Beck, 175 A.D.2d 689; see, Allan Allan Arts v. Rosenblum, 201 A.D.2d 136), and therefore the claims against the State stemming from his testimony are unavailing (see, Goldberg v. Penny, 163 A.D.2d 352, 354; Tango v. Tulevech, 61 N.Y.2d 34, supra; Rottkamp v Young, 21 A.D.2d 373, affd 15 N.Y.2d 831, supra). Balletta, J.P., Pizzuto, Friedmann and Krausman, JJ., concur.