Opinion
March 25, 1996
Adjudged that the determination is confirmed and the proceeding is dismissed, on the merits, with costs.
We note that, because the Commissioner's determination was not made after a hearing, this proceeding does not raise a question of substantial evidence ( see, CPLR 7803). Therefore, the Supreme Court erred in transferring the proceeding to this Court ( see, CPLR 7804 [g]; Matter of Harris v New York State Div. of Parole, 211 A.D.2d 205, 206). In the interest of judicial economy, however, this Court will retain jurisdiction and address the merits ( see, Matter of Steck v Jorling, 219 A.D.2d 727; Matter of Harris v New York State Div. of Parole, supra).
The Commissioner properly granted the New York State Department of Environmental Conservation's (hereinafter the DEC) motion for a summary order. Pursuant to 6 NYCRR 622.12 (d) (6 N.Y.CRR former 622.10 [c]), a motion for a summary order may be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to grant summary judgment under CPLR 3212. Here, the DEC submitted sufficient evidence demonstrating that the petitioners violated various provisions of 6 N.Y.CRR part 360 and the special conditions of the DEC-issued solid waste management facility permits. The petitioners' papers in opposition failed to establish the existence of any material issue of fact which would require a hearing. Accordingly, the DEC satisfied the prima facie showing required to warrant judgment in its favor as a matter of law ( see, Alvarez v Prospect Hosp., 68 N.Y.2d 320; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851; Zuckerman v City of New York, 49 N.Y.2d 557).
Moreover, the penalty imposed cannot be said to be so disproportionate to the numerous offenses, in light of all the circumstances, as to be shocking to one's sense of fairness ( see, Matter of Purdy v Kreisberg, 47 N.Y.2d 354, 360; Matter of Pell v Board of Educ., 34 N.Y.2d 222, 223).
Finally, the petitioners are precluded from obtaining judicial review of their argument that they were not required to obtain a solid waste management facility permit because this issue was not raised at the administrative level ( see, e.g., Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833; Matter of Klapak v Blum, 65 N.Y.2d 670; Matter of Johnson v Coughlin, 205 A.D.2d 537; Matter of Abramo v New York State Dept. of State, 199 A.D.2d 1083). Balletta, J.P., Thompson, Pizzuto and Altman, JJ., concur.