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NYS v. SOUR MTN. REALTY

276 A.D.2d 8 (2000)

714 N.Y.S.2d 78

STATE OF NEW YORK et al., Respondents, v. SOUR MOUNTAIN REALTY, INC., Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 2, 2000.

Attorney(s) appearing for the Case

Wichler & Gobetz, Suffern (Laura Zeisel, Kenneth C. Gobetz, and Kenneth M. Stenger of counsel), for appellant.

Eliot Spitzer, Attorney General, New York City (Christopher A. Amato and Robert Rosenthal of counsel), for respondents.

John W. Caffry, Glens Falls (Inga L. Fricke of counsel), for Scenic Hudson, Inc., Scenic Hudson Land Trust, Inc., and another, amicus curiae.

Hinman, Straub, Pigors & Manning, P. C., Albany (Bartley J. Costello, III and Deirdre Roney of counsel), for New York State Builders Association, Inc., and others, amicus curiae.

John G. Schmidt, Jr., Buffalo (M. Reed Hopper and David E. Haddock of counsel), for Pacific Legal Foundation, amicus curiae.

Environmental Policy Project, Washington, D.C. (John D. Echeverria and Jon T. Zeidler of counsel), amicus curiae.

RITTER, J.P., SULLIVAN, KRAUSMAN and GOLDSTEIN, JJ., concur.

OPINION OF THE COURT

Per Curiam.

On appeal we must construe a portion of ECL 11-0535 (hereinafter the New York State Endangered Species Act) to determine whether a "taking" of a threatened species includes the modification of its habitat. We hold that a prohibited taking of a protected species may occur upon the modification of its habitat. Moreover, under the particular circumstances before us, we conclude that the Supreme Court properly found that the...

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