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LEHIGH PORTLAND CEMENT v. DEC

87 N.Y.2d 136 (1995)

661 N.E.2d 961

638 N.Y.S.2d 388

Lehigh Portland Cement Company, Appellant, v. New York State Department of Environmental Conservation, Respondent.

Court of Appeals of the State of New York.

Decided December 5, 1995.

Attorney(s) appearing for the Case

Rapport, Meyers, Griffen & Whitbeck, Hudson (Victor M. Meyers of counsel), for appellant.

Dennis C. Vacco, Attorney-General, Albany (Lawrence A. Rappoport, Victoria A. Graffeo, Peter H. Schiff and James A. Sevinsky of counsel), for respondent.

Chief Judge KAYE and Judges TITONE and CIPARICK concur with Judge SMITH; Judge BELLACOSA dissents and votes to affirm in a separate opinion in which Judges SIMONS and LEVINE concur.

SMITH, J.

The issue presented on this appeal is whether a declaratory judgment action was properly dismissed on the ground that plaintiff failed to exhaust administrative remedies. We conclude that the dismissal was improper because, in this case, the pursuit of administrative remedies would have been futile. Accordingly, we modify the order of the Appellate Division and remit this declaratory judgment action...

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