Opinion
06-22-2017
In the Matter of FMC CORPORATION, Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
Hodgson Russ, LLP, Buffalo (David G. Mandelbaum of Greenberg Traurig, LLP, Philadelphia, Pennsylvania, admitted pro hac vice), for appellant. Eric T. Schneiderman, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.
Hodgson Russ, LLP, Buffalo (David G. Mandelbaum of Greenberg Traurig, LLP, Philadelphia, Pennsylvania, admitted pro hac vice), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.
Before: GARRY, J.P., LYNCH, ROSE, MULVEY and AARONS, JJ.
AARONS, J.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 7, 2016 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner commenced this CPLR article 78 proceeding challenging respondent's determination in a June 2015 letter demanding that petitioner pay $2.8 million as expenses incurred in connection with a remediation plan and another determination in an August 2015 letter that referred the matter to the Attorney General. Respondent moved to dismiss the petition on the basis that the letters did not constitute a final agency determination. Supreme Court granted the motion and petitioner now appeals.
After petitioner perfected its appeal, but before it was fully briefed, this Court issued a decision in a prior related appeal involving these parties (Matter of FMC Corp. v. New York State Dept. of Envtl. Conservation, 143 A.D.3d 1128, 40 N.Y.S.3d 220 [2016], lv. granted 2017 N.Y. Slip Op. 63646 [U], 2017 WL 509845 [2017] ). In view of this decision, petitioner acknowledges in its reply brief that Supreme Court's "judgment is correct," that the "judgment should be affirmed" and that this appeal is now moot. Based upon these concessions, petitioner is no longer aggrieved (see CPLR 5511 ).
While petitioner still challenges certain statements in Supreme Court's decision as objectionable, at oral argument, the parties agreed that such statements were dicta. Because disagreement with dicta does not provide a basis to take an appeal (see B & N Props., LLC v. Elmar Assoc., LLC, 51 A.D.3d 831, 832, 858 N.Y.S.2d 720 [2008] ; Edge Mgt. Consulting v. Irmas, 306 A.D.2d 69, 69, 761 N.Y.S.2d 172 [2003] ; see generally Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472–473, 510 N.Y.S.2d 67, 502 N.E.2d 982 [1986] ), the appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs.
GARRY, J.P., LYNCH, ROSE and MULVEY, JJ., concur.