McClusky v. New York State Department of Environmental Conservation

Determination unanimously confirmed without costs and petition dismissed. *1006Memorandum: In our view, the Commissioner’s decision and order of March 10, 1988 is a final order within the purview of ECL 27-1313 (3) and (4) (cf., Matter of Delaware County Citizens Opposed to Powerline Route Alternatives v Public Serv. Commn., 120 AD2d 256). Since this CPLR article 78 proceeding was not commenced within the statutory 30-day period of ECL 27-1313 (4), it is untimely and must be dismissed. Thus, we are unable to reach the merits of petitioner’s claim that respondents’ determination should be annulled based upon the Court of Appeals recent decision in Matter of New York State Superfund Coalition v New York State Dept, of Envtl. Conservation (75 NY2d 88), which struck down the regulatory rubric for the operation of ECL article 27, title 13, under which this matter was decided.

Petitioner argues that we are precluded from dismissing this proceeding on Statute of Limitations grounds by reason of our prior order denying respondents’ motion to dismiss. The court has inherent power to resettle its order to correct or clarify it (see, 2 Carmody-Wait 2d, NY Prac § 8:125). Our decision on the preanswer motion to dismiss the proceeding on the ground that it was barred by the Statute of Limitations was not on the merits, and by our order we intended to deny the motion to permit the issue to be briefed and argued along with the argument of the other issues in the proceeding. We correct our order accordingly. Inasmuch as both parties have briefed and argued the Statute of Limitations issue along with the other issues in this proceeding, we have addressed that issue on the merits. (Article 78 proceeding transferred by order of Supreme Court, Onondaga County, Miller, J.) Present —Callahan, J. P., Boomer, Pine, Balio and Lowery, JJ.