        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

372
CA 12-01132
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF GREEN THUMB LAWN CARE, INC.
AND JOHN KNUTSON, PH.D.,
PETITIONERS-PLAINTIFFS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

PETER M. IWANOWICZ, ACTING COMMISSIONER, AND NEW
YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, RESPONDENTS-DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


MICHAEL A. DEEM, OSSINING, HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J.
PIERCE OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ANDREW G. FRANK OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered
October 13, 2011 in a CPLR article 78 proceeding and declaratory
judgment action. The judgment, inter alia, denied the requests of
petitioners-plaintiffs for a declaratory judgment, and declared that 6
NYCRR 325.40 terminated the authority of petitioners-plaintiffs to use
notice waivers.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the declaration and
dismissing that part of the amended petition/complaint seeking
declaratory relief and as modified the judgment is affirmed without
costs.

     Memorandum: These consolidated appeals arise from an
administrative proceeding in which the New York State Department of
Environmental Conservation (DEC) alleged that Green Thumb Lawn Care,
Inc. (Green Thumb) and its president, John Knutson, had violated
statutes and regulations by, inter alia, performing residential lawn
care without having a signed contract that specified the dates upon
which pesticides would be applied. As a result of that administrative
proceeding, the Acting Commissioner of the DEC ruled that Green Thumb
and Knutson violated ECL 33-1001, as well as the regulation
promulgated by the DEC with respect to that statute (see 6 NYCRR
325.40), and, inter alia, assessed a penalty. Petitioners-plaintiffs,
Green Thumb and Knutson (hereafter, petitioners), commenced a combined
CPLR article 78 proceeding and declaratory judgment action to
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                                                         CA 12-01132

challenge that ruling and, in appeal No. 1, they appeal from a
judgment that, inter alia, confirmed the Acting Commissioner’s
determination and issued a declaration in favor of respondents-
defendants, the DEC and the Acting Commissioner (hereafter,
respondents). Petitioners commenced a second CPLR article 78
proceeding to challenge a policy statement issued by the DEC in 2005
and, in appeal No. 2, they appeal from a judgment dismissing that
petition.

     With respect to appeal No. 1, petitioners contend that the Acting
Commissioner’s determination that they violated the statute and
regulation was arbitrary and capricious, and thus that Supreme Court
erred in confirming it. We reject that contention. In general,
judicial review of an administrative determination is limited to
whether the administrative action is arbitrary and capricious or lacks
a rational basis (see Matter of Concetta T. Cerame Irrevocable Family
Trust v Town of Perinton Zoning Bd. of Appeals, 6 AD3d 1091, 1092; see
generally Matter of Pell v Board of Educ. of Union Free School Dist.
No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d
222, 231). In a situation such as this, however, “where ‘the question
is one of pure statutory reading and analysis, dependent only on
accurate apprehension of legislative intent, there is little basis to
rely on any special competence or expertise of the administrative
agency and its interpretive regulations are therefore to be accorded
much less weight. And, of course, if the regulation runs counter to
the clear wording of a statutory provision, it should not be accorded
any weight’ ” (Matter of Lighthouse Pointe Prop. Assoc. LLC v New York
State Dept. of Envtl. Conservation, 14 NY3d 161, 176; see Matter of
New York State Superfund Coalition, Inc. v New York State Dept. of
Envtl. Conservation, 18 NY3d 289, 296).

     When petitioners applied the products at issue, the statute
provided that “[p]rior to any commercial lawn application the
applicator shall enter into a written contract with the owner of the
property or his agent specifying the approximate date or dates of
application, number of applications, and total cost for the service to
be provided” (ECL former 33-1001 [1]). In addition, the DEC
regulations require that the written contract shall “specify the
approximate date or dates of application or applications; . . . state
the total cost of the commercial lawn application service to be
provided; . . . [and] be signed by both the pesticide applicator or
business providing the commercial lawn application and the owner or
owner’s agent of the property to which the commercial lawn application
is to be made; provided, however, the signature of the owner or
owner’s agent is not required if the pesticide applicator or business
possesses a separate document that specifically evidences the owner or
owner’s agent signature as acceptance of the written contract, such as
a copy of a prepayment check, in the exact amount specified in the
written contract for the agreed-upon services” (6 NYCRR 325.40 [a]
[1], [3], [6]).

     The legislative history of the statute establishes that it was
enacted for two purposes, to wit, to ensure that commercial lawn care
businesses did not apply their products without first having a written
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                                                         CA 12-01132

contract that included the full price to be paid by the consumer, and
to ensure that residents were aware when possibly hazardous chemicals
were going to be applied to their properties. Based upon that
history, and the unequivocal wording of the statute and regulation,
the Acting Commissioner’s conclusion that petitioners’ agreement with
the owners of the subject property did not meet either requirement was
not arbitrary or capricious. The total price to be paid for
petitioners’ services does not appear anywhere in the agreement, and
petitioners concede that it was not the same price as was paid a year
earlier pursuant to the contract that petitioners contend was renewed.
Furthermore, the dates of application on the document that petitioners
sent to the property owner included ranges of dates that encompassed
more than half of the calendar year, and thus are patently not
approximate dates of application.

     Contrary to petitioners’ further contention, the Acting
Commissioner did not act arbitrarily or capriciously in concluding
that petitioners were not permitted to seek a blanket waiver of the
approximate dates of application. His conclusion that such waivers
would eviscerate one of the core purposes of the legislation is also
consistent with the plain wording of the statute and the legislative
intent, and thus is neither arbitrary or capricious.

     We agree with petitioners’ further contention that the court
erred in declaring the rights of the parties and instead should have
dismissed that part of the amended petition/complaint seeking
declaratory relief. We therefore modify the judgment in appeal No. 1
accordingly. Petitioners sought a declaration of the rights of the
parties with respect to a 2002 consent order, and also sought further
declarations that petitioners had the right to obtain waivers of the
right to notification of the approximate dates upon which petitioners
would apply products to the property of other customers. Pursuant to
CPLR 3001, “[t]he supreme court may render a declaratory judgment . .
. as to the rights and other legal relations of the parties to a
justiciable controversy.” “A declaratory judgment action thus
‘requires an actual controversy between genuine disputants with a
stake in the outcome,’ and may not be used as ‘a vehicle for an
advisory opinion’ ” (Long Is. Light. Co. v Allianz Underwriters Ins.
Co., 35 AD3d 253, 253, appeal dismissed 9 NY3d 1003, quoting Siegel,
Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR
C3001:3 at 259; see Ramunno v Skydeck Corp., 30 AD3d 1074, 1074).

     Here, the court, with the consent of the DEC, dismissed all
charges related to alleged violations of the 2002 consent order, and
thus no active controversy remained with respect to it. Petitioners’
remaining requests seek a declaration that petitioners may act in a
certain manner in the future when interacting with other, unidentified
consumers, and thus “presented hypothetical issues concerning future
events which may or may not occur” (Matter of United Water New
Rochelle v City of New York, 275 AD2d 464, 466). Consequently, no
justiciable controversy was presented, and the court was required to
dismiss the amended petition/complaint insofar it sought declaratory
relief (see generally Megibow v Condominium Bd. of Kips Bay Towers
Condominium, Inc., 38 AD3d 265, 266).
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                                                         CA 12-01132

     Contrary to petitioners’ further contention, the court properly
dismissed the CPLR article 78 petition in appeal No. 2. In that
proceeding, petitioners challenged the promulgation of the DEC’s
“Policy DSHM-PES-05-11,” concerning “Compliance with Certain
Provisions of Commercial Lawn Application Regulations” (2005 policy).
The court dismissed the proceeding on the ground that it was not ripe
for judicial review. The test for ripeness is well settled, to wit, a
determination must be final before it is subject to judicial review
(see CPLR 7801 [1]). “In order to determine whether an agency
determination is final, a two-part test is applied. ‘First, the
agency must have reached a definitive position on the issue that
inflicts actual, concrete injury and[,] second, the injury inflicted
may not be prevented or significantly ameliorated by further
administrative action or by steps available to the complaining
party’ ” (Matter of County of Niagara v Daines, 79 AD3d 1702, 1704, lv
denied 17 NY3d 703, quoting Matter of Best Payphones, Inc. v
Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34,
rearg denied 5 NY3d 824). Here, the Acting Commissioner declined to
apply the 2005 policy to the determination at issue, concluding that
it was not yet in effect when petitioners applied the lawn care
products at issue. Consequently, inasmuch as no “ ‘actual concrete
injury’ ” has been inflicted and the injury was in fact “ ‘prevented
or significantly ameliorated by further administrative action’ ”
(id.), the matter is not ripe for judicial review.

     We have considered petitioners’ remaining contentions, and
conclude that they are without merit.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
