Incorporated Village of Ocean Beach v. Department of Health Services

—In a proceeding pursuant to CPLR article 78 to review a deterniination of the

Ordered that the judgment is affirmed, with costs.

Initially, we note that this appeal presents an exception to the mootness doctrine (cf., Matter of Hearst Corp. v Clyne, 50 NY2d, 707 ; City of New York v Wiggles, 271 AD2d 632 ).

Contrary to the petitioner’s contention, the determination of the Department of Health Services, County of Suffolk, (hereinafter the County) denying it a permit to operate its bathing beach for the 1998 season after granting such a permit for the 1997 season, was not arbitrary and capricious. Although the factual predicates for its two determinations are almost identical, the County showed a proper basis for changing its determination based upon the 1998 amendment to the New York State Sanitary Code (see, 10 NYCRR 6-2.13 [a]; 6-2.19 [5.1]), and a further review of the previous judicial decisions relating to this matter in light of that amendment (see, Matter of Pokoik v Department of Health Servs., 237 AD2d 368 ; Matter of Pokoik v Department of Health Servs., 168 Misc 2d 459 ; see also, Matter of Richardson v Commissioner of N. Y. City Dept. of Social Servs., 88 NY2d 35 , 39-40; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516 , 517). Thus, the Supreme Court properly denied the petition and dismissed the proceeding. Bracken, J. P., Ritter, Friedmann and Florio, JJ., concur. .