Hamilton v. Diamond — 69 Misc. 2d 492

Majority

p. 492

In the Matter of Lloyd A. Hamilton, Jr., et al., Petitioners, v. Henry L. Diamond, as Commissioner of Environmental Conservation of the State of New York, et al., Respondents.

Supreme Court, Rockland County,

February 29, 1972.

Doig, Cornell & Mandel for petitioners. Louis J. Lefkowitz, Attorney-General, for Henry L. Diamond and others, respondents. Windheim, Bernard, Prindle & Maidman for Eberhard M. Thiermann, respondent.

This is an article 78 proceeding to review a determination made by respondents constituting the Department of Environmental Conservation of the State of New York, after a public hearing. Said respondents move for a change of venue upon the grounds that Rockland County is not a proper county (CPLR 510, subd. 1) and that the only county in which this proceeding may properly be brought is Albany County (CPLR 506, subd. [b], par. 2).

p. 493

CPLR 506 (subd. [b], par. 2) provides that a special proceeding against “ the water resources board * * * shall be commenced in the supreme court, Albany county ”. There is, and never was, any agency known,as the “water resources board ”. However, prior to the enactment of chapter 140 of the Laws of 1970, there was an agency known as the “ Water Resources Commission ”. The reference in CPLR 506 to the “water resources board” was erroneous, and was obviously intended to refer to the Water" Resources Commission.

In making the determination sought to be reviewed herein, respondent Department of Environmental Conservation exercised a power formerly residing in the Water Resources Commission. The functions, powers, obligations and duties of the Water Resources Commission were transferred to the Department of Environmental Conservation by virtue of section 75 of the Environmental Conservation Law (L. 1970, ch. 140, § 2). Section 88 of the said Environmental Conservation Law provides that ‘ ‘ whenever the departments, commissions, boards or other agencies or commissioners and directors thereof, the functions, powers, obligations and duties of which are transferred by this chapter to the department [of Environmental Conservation], are referred to or designated in any law * * * such reference * * * shall be deemed to refer to the department of environmental conservation or the commissioner of environmental conservation as may be appropriate ”.

Thus, pursuant to the foregoing statute, the reference in CPLR 506 to the water resources board (Water Resources Commission) must be deemed a reference to the Department of Environmental Conservation. It follows that the only county in which this proceeding may be brought is Albany County.

Accordingly, the motion is granted.