Glanville v. Lehman , 530 N.Y.S.2d 719 ( 1988 )

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this action for a judgment declaring 9 NYCRR 375.1 (s) to be invalid, plaintiff appeals from an order which denied his motion for summary judgment. We modify by declaring the regulation to be valid and otherwise affirm. The regulation, which prohibits the use of State reservations and parklands abutting the lower Niagara River for the purpose of navigating the rapids, was properly promulgated by the Commissioner pursuant to the delegation of authority contained in PRHPL 3.09 (5). The regulation was adopted in "substantial compliance” with the provisions of the State Administrative Procedure Act (see, State Administrative Procedure Act § 202 [2] [b] [1]; [7]). Finally, the regulation is a rational response to the danger to human life inherent in attempts to negotiate the rapids of the lower Niagara River, the Commissioner’s lack of resources to assess the qualifications of boaters, the potential for imposition of liability against the State if the permit system were maintained, and the need for costly and hazardous rescue attempts in the event of a boating mishap.

We have considered the other contentions raised by plaintiff and conclude that they are without merit. (Appeal from judgment of Supreme Court, Erie County, Francis, J.— declaratory judgment.) Present—Callahan, J. P., Denman, Green, Balio and Davis, JJ.