PVS Chemicals, Inc. v. New York State Department of Environmental Conservation , 682 N.Y.S.2d 787 ( 1998 )

—Judgment unanimously affirmed with costs. Memorandum: Petitioner appeals from a judgment dismissing its petition challenging the issuance of a positive declaration (6 NYCRR 617.2 [ac]) by respondent. Supreme Court properly held that “the issuance of a positive declaration is not final agency action subject to CPLR article 78 review” (Matter of Rochester Tel. Mobile Communications v Ober, 251 AD2d 1053, 1054). A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art 8) and therefore not ripe for judicial review (see, Matter of Rochester Tel. Mobile Communications v Ober, supra, at 1054, citing Matter of Town of Coeymans v City of Albany, 237 AD2d 856, 857, lv denied 90 NY2d 803). Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration. Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position (see, Matter of Essex County v Zagata, 91 NY2d 447, 454). (Appeal from Judgment of Supreme Court, Erie County, Scorners, J. — CPLR art 78.) Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.