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FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017
STATE OF NEW YORK
SUPREME COURT : COUNTY OF WESTCHESTER
ROBERT P. ASTORINO, individually, and in his
capacity as Westchester County Executive,
Petitioner-Plaintiff,
-against-
GOVERNOR ANDREW M. CUOMO in his official
capacity; THE STATE OF NEW YORK; OFFICE OF
THE ATTORNEY GENERAL OF THE STATE OF
NEW YORK; LISA M. BURIANEK in her official
capacity; NEW YORK STATE DEPARTMENT OF
Hon. Helen M. Blackwood
ENVIRONMENTAL CONSERVATION; BASIL
SEGGOS in his official capacity; NEW YORK STATE
Index Nos.
DEPARTMENT OF HEALTH; HOWARD A.
57265/2017 & 57284/2017
ZUCKER in his official capacity; NEW YORK STATE
DEPARTMENT OF STATE; ROSSANA ROSADO in
her official capacity; NEW YORK STATE
DEPARTMENT OF PUBLIC SERVICE; GREGG C.
SAYRE in his official capacity; RIVERKEEPER,
INC.; ENTERGY NUCLEAR INDIAN POINT 2,
LLC; ENTERGY NUCLEAR INDIAN POINT 3,
LLC; and ENTERGY NUCLEAR OPERATIONS,
INC.,
Respondents-Defendants.
REPLY MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO CHANGE VENUE
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
The Capitol
Albany, New York 12224
Attorney for Respondents-
Defendants Governor Andrew
M. Cuomo, the State of New
York, the Office of the Attorney
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General, Lisa M. Burianek, the
New York State Department of
Environmental Conservation,
Basil Seggos, the New York
State Department of Health,
Howard A. Zucker, the New
York State Department of State,
and Rossana Rosado
MIHIR A. DESAI
JOSHUA M. TALLENT
Assistant Attorneys General
Of Counsel
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PRELIMINARY STATEMENT
The State Respondents submit this reply memorandum of law in support of
their motions to change the venue of each of these hybrid CPLR article 78 and
declaratory judgment proceedings and actions from Westchester County to Albany
County.1
In two separate proceedings, petitioner seeks to block the eventual cessation
of operations at Indian Point by challenging (1) a settlement agreement between the
State Respondents, respondent New York State Department of Public Service (DPS
and, with respondent Gregg C. Sayre and the State Respondents, the State), and
Indian Point’s owners, respondents Entergy Nuclear Indian Point 2, LLC, Entergy
Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. (collectively, Entergy);
and (2) a State Pollution Discharge Elimination System (SPDES) permit and Clean
Water Act § 401 water quality certification (WQC). In both proceedings, petitioner
alleges that the State failed to adequately review the effects of closing Indian Point
under the State Environmental Quality Review Act (SEQRA).
1 The State Respondents are: Governor Andrew M. Cuomo in his official capacity,
the State of New York, the New York State Office of the Attorney General, Assistant
Attorney General Lisa M. Burianek in her official capacity, the New York State
Department of Environmental Conservation (DEC), DEC Commissioner Basil Seggos in his
official capacity, the New York State Department of Health (DOH), DOH Commissioner
Howard A. Zucker in his official capacity, the New York State Department of State (DOS),
and Secretary of State Rossana Rosado in her official capacity.
In the interest of economy, the State Respondents submit a single brief in reply to
petitioner’s brief in opposition to the State Respondents’ motions to change venue in both
the settlement agreement proceedings (Index No. 57284) and SPDES/WQC proceedings
(Index No. 57265). A copy of the State Respondents’ reply brief will be filed electronically in
both dockets.
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The State’s decision to enter into the settlement agreement with Entergy was
made in and from Albany, New York. The State Respondents and DPS executed the
agreement in Albany. No material event leading to the execution of the agreement
took place in Westchester County. Similarly, the administrative decision-making
and adjudicative processes leading to the issuance of the SPDES permit and WQC
took place almost entirely in Albany County. Moreover, Albany is where the State
Respondents allegedly refused to perform the SEQRA review that forms the basis of
petitioner’s challenge here. Because none of the material events giving rise to the
challenged actions actually took place in Westchester County, venue in that county
is improper under CPLR 7804 (b) and 506 (b). Although CPLR 506 (b) is the
controlling venue provision here, to the extent the CPLR 506 (b) venue analysis
conflicts with petitioner’s choice of venue pursuant to CPLR 503, the State
Respondents respectfully suggest that the Court may reconcile such conflicting
provisions by exercising its discretion under CPLR 502 to transfer the proceedings
to Albany County.
ARGUMENT
1. Under CPLR 506 (b), venue is improper in Westchester County.
In opposition to the State Respondents’ motions to change venue, petitioner
contends that Westchester County is a proper venue under CPLR 506 (b) because
Westchester County is where the State Respondents “refused to perform the duty
specifically enjoined upon [them]”—i.e., where the State allegedly refused to
conduct a “full” SEQRA review of the potential environmental impacts flowing from
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Entergy’s decision to cease power generation activities at the Indian Point facility.
Pet’s Opp Br at 3 (internal quotation marks and citation omitted). Even assuming,
for the sake of argument, that such a SEQRA analysis was required, petitioner’s
analysis misconstrues the statute.
CPLR 506 (b) sets forth three bases for venue in CPLR article 78 proceedings.
Venue is proper in any county within the judicial district: (1) “where the respondent
made the determination complained of or refused to perform the duty specifically
enjoined upon him [or her] by law, or where the proceedings were brought or taken
in the course of which the matter sought to be restrained originated”; (2) where the
material events giving rise to the determination took place; or, finally, (3) where the
respondent’s principal office is located. CPLR 506 (b). The first of the three bases
for venue “refer[s] to the place of the official action being challenged” and “is framed
in terms of the tripartite distinction[] among certiorari [for review],” mandamus to
compel, and prohibition. Hecht v New York State Teachers’ Retirement Sys., 138
Misc 2d 198, 200 (Sup Ct, Suffolk County 1987), quoting Weinstein-Korn-Miller, NY
Civ Prac ¶ 7804.03. As the courts and commentators have observed, “[w]hatever
the nature of the relief sought, the place where the action challenged . . . actually
occurred will not vary, regardless of whether the question is framed as the place of
the ‘determination’ or ‘refusal to perform the duty’ or ‘where the proceedings were
brought.’” Id. That is, to the extent petitioner frames his challenge as in the nature
of mandamus to compel the performance of a non-discretionary duty, the situs of the
State Respondents’ “determination”—their alleged refusal to perform a SEQRA
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analysis—remains Albany County. Albany County is where the State Respondents’
principal offices are located, where they negotiated the settlement agreement,
where they conducted the SEQRA review underlying the SPDES permit, where 58
days of administrative hearings were held on the SPDES permit and WQC, and
where DEC made the administrative determination to issue the SPDES permit and
WQC.
Petitioner also fails to establish that material events giving rise either to the
settlement agreement or to the issuance of the SPDES permit or WQC took place in
Westchester County. While petitioner points to testimony he gave at a hearing in
Westchester County convened by the New York State Senate Standing Committee
on Investigations and Government Operations, see Pet’s Opp Br at 8, this hearing
was independently convened by the committee after the settlement agreement had
been executed; simply put, the committee hearing had nothing to do with the State
Respondents’ negotiation and execution of the settlement agreement or with the
issuance of the challenged permit and WQC. To the extent petitioner argues that
Westchester County’s comment on DEC’s SFEIS constituted a material event, see
id., this comment was submitted to DEC’s Albany staff at DEC’s Albany offices only
after the settlement agreement was negotiated and executed. See Pet’n & Compl in
Index No. 57265/2017, Ex 8. The comment was reviewed and responded to by
DEC’s Albany staff and ultimately became part of DEC’s voluminous, Albany-based
administrative record. In any case, the mere mailing of a comment letter is not a
“material event” sufficient to form a basis for venue under CPLR 506 (b).
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To the extent petitioner alleges that Entergy’s decision to shutter Indian
Point will cause a number of adverse economic impacts in Westchester County, see
id. at 7, these speculative impacts cannot be material events that give rise to the
settlement agreement or the permit and WQC. Despite petitioner’s arguments to
the contrary, the law is clear that the material events leading to a determination
are separate and distinct from the prospective effects such determination may have.
See e.g. Hecht, 138 Misc 2d at 201; Ward v Sise, 127 Misc 2d 32, 32-33 (Sup Ct, Erie
County 1984); see also Cohen v Department of Social Services of State of N.Y., 37
AD2d 626, 626 (2d Dept 1971), affd 30 NY2d 571 (1972); Semple v Miller, 67 Misc
2d 545, 547 (Sup Ct, Monroe County 1971). The potential ramifications of Indian
Point’s eventual closure are not legally relevant “material events” giving rise to the
decision to enter into the settlement agreement or to issue the SPDES permit or
WQC and, accordingly, are not relevant to the question whether venue was properly
laid in Westchester County under CPLR 506 (b).
Petitioner’s heavy reliance on Matter of Riccelli Enters., Inc. v State of New
York Workers' Compensation Bd. (2012 NY Slip Op 31250[U] [Sup Ct, Onondaga
County 2012]) is misplaced. In Riccelli, the petitioners, former members of an
insolvent group self-insured trust, sued the New York State Workers’ Compensation
Board in Onondaga County to annul certain deficit assessments made against the
former trust members. See id. at *1-*2. The petitioners alleged, among other
things, that the Board acted illegally in authorizing and administering the trust.
See id. at *12. The Board moved to change venue to Albany County. The court
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denied the Board’s motion, holding that the material events underlying the claim
took place Onondaga County. Specifically, the court noted that the petitioners
joined the trust and conducted trust-related activities in Onondaga County, that
injured workers filed workers’ compensation claims with the trust in Onondaga
County, and that the Board attempted to enforce its deficit assessment through an
Onondaga County-based agent. See id. at*17-*18.
Here however, none of the material events leading either to the settlement
agreement or to the issuance of the DEC permit or WQC took place in Westchester
County. The agreement between the State and Entergy arose out of settlement
negotiations led by the Governor’s Office and conducted in and from Albany County.
Similarly, issuance of the SPDES permit and WQC—and the related SPDES
SEQRA review—took place in Albany County and was premised upon a years-long
Albany-based administrative and adjudicatory process. To the extent petitioner
attempts to analogize the instant proceedings to the facts of Riccelli by speculating
that either the settlement agreement or the SPDES permit might one day become
the subject of an enforcement action in Westchester County, is should suffice to say
that there is no such action ongoing here, nor is such an action reasonably likely to
occur in the near future.
The instant proceedings are factually distinct from Riccelli but analogous, for
example, to Cohen, where the Appellate Division, Second Department held that a
legal challenge to a state agency’s decision to close a state-operated institution was
properly venued not in the judicial district where the facility was located, but rather
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in the district—the Third—where the administrative process leading to the decision
took place. See 37 AD3d at 626; see also Semple, 67 Misc 2d at 547 (in challenge to
state agency’s decision to close state-run psychiatric hospital, venue properly laid in
the Third Judicial District where the decision-making process took place, not in the
district encompassing the county where the facility was located). Similarly here,
while petitioner alleges that Entergy’s business decision to cease power generation
at Indian Point may have a number of adverse effects in the future, these potential
effects are not material events within the meaning of CPLR 506 (b) and the case law
interpreting the statute.
2. In the event applicable venue provisions conflict, the Court retains
discretion under CPLR 502 to grant the State Respondents’ motions
to change venue to Albany County.
To the extent petitioner argues that venue is properly laid in Westchester
County under CPLR 503, the State Respondents respectfully submit, for the
reasons that follow, that petitioner is incorrect. In the event the Court concludes
that venue is properly laid in Westchester County under CPLR 503, this gives rise,
at most, to a conflict as between CPLR 503 (a) and CPLR 506 (b). The State
Respondents accordingly request that, to the extent such conflict exists, the Court
exercise its discretionary authority under CPLR 502 to transfer the proceedings to
Albany County.
As is plain from the petitions in both proceedings, the focus of petitioner’s
complaint is the State’s alleged failure to conduct adequate environmental review
under SEQRA. This challenge to governmental activity is properly brought as a
proceeding pursuant to CPLR article 78. To the extent petitioner seeks declaratory
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relief, a declaratory judgment action is generally not the proper procedural vehicle
for a challenge to administrative action. See Greystone Mgt. Corp. v Conciliation &
Appeals Bd. of City of N.Y., 62 NY2d 763, 765 (1984) (“[A] declaratory judgment
action is not the proper vehicle to challenge an administrative procedure[] where
judicial review by way of article 78 proceeding is available”). In any event, to the
extent petitioner seeks declaratory relief that is duplicative of his prayer for relief
under CPLR article 78, the declaratory judgment portion of these proceedings is
unnecessary and should be dismissed. See Matter of Gable Transp., Inc. v State of
New York, 29 AD3d 1125, 1127-1128 (3d Dept 2006). As such, petitioner incorrectly
relies on CPLR 503 (a) as a statutory basis for selecting Westchester County as the
venue for these proceedings.2
Even assuming petitioner had correctly relied on CPLR 503 (a) as the basis
for his venue selection, such reliance would create a conflict between that section
and CPLR 506 (b). As discussed above, under CPLR 506 (b), these proceedings are
not properly venued in Westchester County because none of the material events
giving rise to the challenged State determinations occurred there. Accordingly, the
Court, in the exercise of its discretion pursuant to CPLR 502, may direct that the
proceedings be transferred to a venue “proper under [CPLR article 5] as to at least
2 Moreover, CPLR 503 (a) may not apply for the simple reason that it is effectively
displaced, in the context of a hybrid proceeding and action, by CPLR 506 (b). See CPLR 503
(a) (“Except where otherwise prescribed by law, the place of trial shall be in the county in
which one of the parties resided when it was commenced”); see also Matter of Dry Harbor
Nursing Home v Zucker, 2016 NY Slip Op 30396(U), *7-*8 (Sup Ct, Queens County 2016);
Matter of Riverkeeper Inc. v New York State Dept. of Envtl. Conservation, 39 Misc 3d
1231(A), 2013 NY Slip Op 50834(U), *3-*4 (Sup Ct, Westchester County 2013) (in a hybrid
proceeding, analyzing motion to change venue under CPLR 506 [b]).
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FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 STATE OF NEW YORK SUPREME COURT : COUNTY OF WESTCHESTER ROBERT P. ASTORINO, individually, and in his capacity as Westchester County Executive, Petitioner-Plaintiff, -against- GOVERNOR ANDREW M. CUOMO in his official capacity; THE STATE OF NEW YORK; OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK; LISA M. BURIANEK in her official capacity; NEW YORK STATE DEPARTMENT OF Hon. Helen M. Blackwood ENVIRONMENTAL CONSERVATION; BASIL SEGGOS in his official capacity; NEW YORK STATE Index Nos. DEPARTMENT OF HEALTH; HOWARD A. 57265/2017 & 57284/2017 ZUCKER in his official capacity; NEW YORK STATE DEPARTMENT OF STATE; ROSSANA ROSADO in her official capacity; NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE; GREGG C. SAYRE in his official capacity; RIVERKEEPER, INC.; ENTERGY NUCLEAR INDIAN POINT 2, LLC; ENTERGY NUCLEAR INDIAN POINT 3, LLC; and ENTERGY NUCLEAR OPERATIONS, INC., Respondents-Defendants. REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO CHANGE VENUE ERIC T. SCHNEIDERMAN Attorney General of the State of New York The Capitol Albany, New York 12224 Attorney for Respondents- Defendants Governor Andrew M. Cuomo, the State of New York, the Office of the Attorney 1 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 General, Lisa M. Burianek, the New York State Department of Environmental Conservation, Basil Seggos, the New York State Department of Health, Howard A. Zucker, the New York State Department of State, and Rossana Rosado MIHIR A. DESAI JOSHUA M. TALLENT Assistant Attorneys General Of Counsel 2 2 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 PRELIMINARY STATEMENT The State Respondents submit this reply memorandum of law in support of their motions to change the venue of each of these hybrid CPLR article 78 and declaratory judgment proceedings and actions from Westchester County to Albany County.1 In two separate proceedings, petitioner seeks to block the eventual cessation of operations at Indian Point by challenging (1) a settlement agreement between the State Respondents, respondent New York State Department of Public Service (DPS and, with respondent Gregg C. Sayre and the State Respondents, the State), and Indian Point’s owners, respondents Entergy Nuclear Indian Point 2, LLC, Entergy Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. (collectively, Entergy); and (2) a State Pollution Discharge Elimination System (SPDES) permit and Clean Water Act § 401 water quality certification (WQC). In both proceedings, petitioner alleges that the State failed to adequately review the effects of closing Indian Point under the State Environmental Quality Review Act (SEQRA). 1 The State Respondents are: Governor Andrew M. Cuomo in his official capacity, the State of New York, the New York State Office of the Attorney General, Assistant Attorney General Lisa M. Burianek in her official capacity, the New York State Department of Environmental Conservation (DEC), DEC Commissioner Basil Seggos in his official capacity, the New York State Department of Health (DOH), DOH Commissioner Howard A. Zucker in his official capacity, the New York State Department of State (DOS), and Secretary of State Rossana Rosado in her official capacity. In the interest of economy, the State Respondents submit a single brief in reply to petitioner’s brief in opposition to the State Respondents’ motions to change venue in both the settlement agreement proceedings (Index No. 57284) and SPDES/WQC proceedings (Index No. 57265). A copy of the State Respondents’ reply brief will be filed electronically in both dockets. 3 3 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 The State’s decision to enter into the settlement agreement with Entergy was made in and from Albany, New York. The State Respondents and DPS executed the agreement in Albany. No material event leading to the execution of the agreement took place in Westchester County. Similarly, the administrative decision-making and adjudicative processes leading to the issuance of the SPDES permit and WQC took place almost entirely in Albany County. Moreover, Albany is where the State Respondents allegedly refused to perform the SEQRA review that forms the basis of petitioner’s challenge here. Because none of the material events giving rise to the challenged actions actually took place in Westchester County, venue in that county is improper under CPLR 7804 (b) and 506 (b). Although CPLR 506 (b) is the controlling venue provision here, to the extent the CPLR 506 (b) venue analysis conflicts with petitioner’s choice of venue pursuant to CPLR 503, the State Respondents respectfully suggest that the Court may reconcile such conflicting provisions by exercising its discretion under CPLR 502 to transfer the proceedings to Albany County. ARGUMENT 1. Under CPLR 506 (b), venue is improper in Westchester County. In opposition to the State Respondents’ motions to change venue, petitioner contends that Westchester County is a proper venue under CPLR 506 (b) because Westchester County is where the State Respondents “refused to perform the duty specifically enjoined upon [them]”—i.e., where the State allegedly refused to conduct a “full” SEQRA review of the potential environmental impacts flowing from 4 4 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 Entergy’s decision to cease power generation activities at the Indian Point facility. Pet’s Opp Br at 3 (internal quotation marks and citation omitted). Even assuming, for the sake of argument, that such a SEQRA analysis was required, petitioner’s analysis misconstrues the statute. CPLR 506 (b) sets forth three bases for venue in CPLR article 78 proceedings. Venue is proper in any county within the judicial district: (1) “where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him [or her] by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated”; (2) where the material events giving rise to the determination took place; or, finally, (3) where the respondent’s principal office is located. CPLR 506 (b). The first of the three bases for venue “refer[s] to the place of the official action being challenged” and “is framed in terms of the tripartite distinction[] among certiorari [for review],” mandamus to compel, and prohibition. Hecht v New York State Teachers’ Retirement Sys., 138 Misc 2d 198, 200 (Sup Ct, Suffolk County 1987), quoting Weinstein-Korn-Miller, NY Civ Prac ¶ 7804.03. As the courts and commentators have observed, “[w]hatever the nature of the relief sought, the place where the action challenged . . . actually occurred will not vary, regardless of whether the question is framed as the place of the ‘determination’ or ‘refusal to perform the duty’ or ‘where the proceedings were brought.’” Id. That is, to the extent petitioner frames his challenge as in the nature of mandamus to compel the performance of a non-discretionary duty, the situs of the State Respondents’ “determination”—their alleged refusal to perform a SEQRA 5 5 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 analysis—remains Albany County. Albany County is where the State Respondents’ principal offices are located, where they negotiated the settlement agreement, where they conducted the SEQRA review underlying the SPDES permit, where 58 days of administrative hearings were held on the SPDES permit and WQC, and where DEC made the administrative determination to issue the SPDES permit and WQC. Petitioner also fails to establish that material events giving rise either to the settlement agreement or to the issuance of the SPDES permit or WQC took place in Westchester County. While petitioner points to testimony he gave at a hearing in Westchester County convened by the New York State Senate Standing Committee on Investigations and Government Operations, see Pet’s Opp Br at 8, this hearing was independently convened by the committee after the settlement agreement had been executed; simply put, the committee hearing had nothing to do with the State Respondents’ negotiation and execution of the settlement agreement or with the issuance of the challenged permit and WQC. To the extent petitioner argues that Westchester County’s comment on DEC’s SFEIS constituted a material event, see id., this comment was submitted to DEC’s Albany staff at DEC’s Albany offices only after the settlement agreement was negotiated and executed. See Pet’n & Compl in Index No. 57265/2017, Ex 8. The comment was reviewed and responded to by DEC’s Albany staff and ultimately became part of DEC’s voluminous, Albany-based administrative record. In any case, the mere mailing of a comment letter is not a “material event” sufficient to form a basis for venue under CPLR 506 (b). 6 6 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 To the extent petitioner alleges that Entergy’s decision to shutter Indian Point will cause a number of adverse economic impacts in Westchester County, see id. at 7, these speculative impacts cannot be material events that give rise to the settlement agreement or the permit and WQC. Despite petitioner’s arguments to the contrary, the law is clear that the material events leading to a determination are separate and distinct from the prospective effects such determination may have. See e.g. Hecht, 138 Misc 2d at 201; Ward v Sise, 127 Misc 2d 32, 32-33 (Sup Ct, Erie County 1984); see also Cohen v Department of Social Services of State of N.Y., 37 AD2d 626, 626 (2d Dept 1971), affd 30 NY2d 571 (1972); Semple v Miller, 67 Misc 2d 545, 547 (Sup Ct, Monroe County 1971). The potential ramifications of Indian Point’s eventual closure are not legally relevant “material events” giving rise to the decision to enter into the settlement agreement or to issue the SPDES permit or WQC and, accordingly, are not relevant to the question whether venue was properly laid in Westchester County under CPLR 506 (b). Petitioner’s heavy reliance on Matter of Riccelli Enters., Inc. v State of New York Workers' Compensation Bd. (2012 NY Slip Op 31250[U] [Sup Ct, Onondaga County 2012]) is misplaced. In Riccelli, the petitioners, former members of an insolvent group self-insured trust, sued the New York State Workers’ Compensation Board in Onondaga County to annul certain deficit assessments made against the former trust members. See id. at *1-*2. The petitioners alleged, among other things, that the Board acted illegally in authorizing and administering the trust. See id. at *12. The Board moved to change venue to Albany County. The court 7 7 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 denied the Board’s motion, holding that the material events underlying the claim took place Onondaga County. Specifically, the court noted that the petitioners joined the trust and conducted trust-related activities in Onondaga County, that injured workers filed workers’ compensation claims with the trust in Onondaga County, and that the Board attempted to enforce its deficit assessment through an Onondaga County-based agent. See id. at*17-*18. Here however, none of the material events leading either to the settlement agreement or to the issuance of the DEC permit or WQC took place in Westchester County. The agreement between the State and Entergy arose out of settlement negotiations led by the Governor’s Office and conducted in and from Albany County. Similarly, issuance of the SPDES permit and WQC—and the related SPDES SEQRA review—took place in Albany County and was premised upon a years-long Albany-based administrative and adjudicatory process. To the extent petitioner attempts to analogize the instant proceedings to the facts of Riccelli by speculating that either the settlement agreement or the SPDES permit might one day become the subject of an enforcement action in Westchester County, is should suffice to say that there is no such action ongoing here, nor is such an action reasonably likely to occur in the near future. The instant proceedings are factually distinct from Riccelli but analogous, for example, to Cohen, where the Appellate Division, Second Department held that a legal challenge to a state agency’s decision to close a state-operated institution was properly venued not in the judicial district where the facility was located, but rather 8 8 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 in the district—the Third—where the administrative process leading to the decision took place. See 37 AD3d at 626; see also Semple, 67 Misc 2d at 547 (in challenge to state agency’s decision to close state-run psychiatric hospital, venue properly laid in the Third Judicial District where the decision-making process took place, not in the district encompassing the county where the facility was located). Similarly here, while petitioner alleges that Entergy’s business decision to cease power generation at Indian Point may have a number of adverse effects in the future, these potential effects are not material events within the meaning of CPLR 506 (b) and the case law interpreting the statute. 2. In the event applicable venue provisions conflict, the Court retains discretion under CPLR 502 to grant the State Respondents’ motions to change venue to Albany County. To the extent petitioner argues that venue is properly laid in Westchester County under CPLR 503, the State Respondents respectfully submit, for the reasons that follow, that petitioner is incorrect. In the event the Court concludes that venue is properly laid in Westchester County under CPLR 503, this gives rise, at most, to a conflict as between CPLR 503 (a) and CPLR 506 (b). The State Respondents accordingly request that, to the extent such conflict exists, the Court exercise its discretionary authority under CPLR 502 to transfer the proceedings to Albany County. As is plain from the petitions in both proceedings, the focus of petitioner’s complaint is the State’s alleged failure to conduct adequate environmental review under SEQRA. This challenge to governmental activity is properly brought as a proceeding pursuant to CPLR article 78. To the extent petitioner seeks declaratory 9 9 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 relief, a declaratory judgment action is generally not the proper procedural vehicle for a challenge to administrative action. See Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 62 NY2d 763, 765 (1984) (“[A] declaratory judgment action is not the proper vehicle to challenge an administrative procedure[] where judicial review by way of article 78 proceeding is available”). In any event, to the extent petitioner seeks declaratory relief that is duplicative of his prayer for relief under CPLR article 78, the declaratory judgment portion of these proceedings is unnecessary and should be dismissed. See Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125, 1127-1128 (3d Dept 2006). As such, petitioner incorrectly relies on CPLR 503 (a) as a statutory basis for selecting Westchester County as the venue for these proceedings.2 Even assuming petitioner had correctly relied on CPLR 503 (a) as the basis for his venue selection, such reliance would create a conflict between that section and CPLR 506 (b). As discussed above, under CPLR 506 (b), these proceedings are not properly venued in Westchester County because none of the material events giving rise to the challenged State determinations occurred there. Accordingly, the Court, in the exercise of its discretion pursuant to CPLR 502, may direct that the proceedings be transferred to a venue “proper under [CPLR article 5] as to at least 2 Moreover, CPLR 503 (a) may not apply for the simple reason that it is effectively displaced, in the context of a hybrid proceeding and action, by CPLR 506 (b). See CPLR 503 (a) (“Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced”); see also Matter of Dry Harbor Nursing Home v Zucker, 2016 NY Slip Op 30396(U), *7-*8 (Sup Ct, Queens County 2016); Matter of Riverkeeper Inc. v New York State Dept. of Envtl. Conservation, 39 Misc 3d 1231(A), 2013 NY Slip Op 50834(U), *3-*4 (Sup Ct, Westchester County 2013) (in a hybrid proceeding, analyzing motion to change venue under CPLR 506 [b]). 10 10 of 11 FILED: WESTCHESTER COUNTY CLERK 07/07/2017 04:57 PM INDEX NO. 57284/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/07/2017 11 of 11