James Simpson, Inc. v. City of New York Environmental Control Board

—In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Environmental Control Board, dated June 26, 1996, which found the petitioner in violation of a provision of the Administrative Code of the City of New York and fined him $350, the appeal is from a judgment of the Supreme Court, Richmond County (Mastro, J.), dated June 13, 1997, which granted the petition and annulled the determination. Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the determination is confirmed, and the proceeding is dismissed. It is well settled that in determining a proceeding pursuant to CPLR article 78, a reviewing court may not consider an issue which was not raised before the administrative tribunal (see, CPLR 7803; Matter of Henry v Wetzler, 82 NY2d 859, cert denied 511 US 1126; Matter of University Hgts. Nursing Home v Chassin, 245 AD2d 776). Inasmuch as the petitioner never argued that it was an improper party to the administrative proceeding, it was error for the court to annul the determination on this ground (see, Matter of Van Cleef Realty v New York State Div. of Human Rights, 216 AD2d 306, 307; Matter of Club Swamp Annex v White, 167 AD2d 400). Moreover, the agency’s determination had a sound basis in reason and thus was neither arbitrary nor capricious (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322, 329; Matter of Eccles v Zoning Bd. of Appeals, 224 AD2d 525). The petitioner’s remaining contentions are without merit. Copertino, J. P., Pizzuto, Altman and Friedmann, JJ., concur.