Hampton Sand Corp. v. Cahill

—In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York State Department of Environmental Conservation, dated *548November 17, 1998, which denied the petitioners’ application for a permit to mine the subject property, the appeal, by permission, as limited by the appellants’ brief, is from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated August 17, 1999, as granted the petition to the extent of staying further administrative proceedings against the petitioners and precluding the appellants from enforcing the determination dated November 17, 1998, and denied the appellants’ motion to dismiss the petition for failure to exhaust available administrative remedies.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the petition is denied, the proceeding is dismissed on the merits, and the motion is denied as academic.

In a related appeal (State of New York v Hampton Sand Corp., 281 AD2d 536 [decided herewith]), we rejected the petitioners’ argument that they were granted a permit to mine the subject property by operation of law because the appellant New York State Department of Environmental Conservation failed to timely respond to their demand for a decision regarding their permit application. Accordingly, this petition, which is predicated upon the same claim, must be denied, and the proceeding dismissed. Krausman, J. P., Luciano, H. Miller and Feuerstein, JJ., concur.