Amstel Recycling & Concrete Corp. v. City of New York

—Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered May 3, 2000, which, to the extent appealed from, in a proceeding pursuant 386 to CPLR article 78 to annul three determinations of respondent New York City Environmental Control Board, severed and dismissed petitioners’ first and second causes of action, unanimously affirmed, without costs. Petitioners correctly state that the issue of whether the facility operated by petitioner Amstel Recycling and Concrete Corp. constitutes a non-putrescible solid waste transfer station, subject to regulation under the Administrative Code of the City of New York § 16-130 et seq., was decided in a prior administrative determination. We conclude, however, that, under the particular circumstances of this case, the flexibility accorded an administrative body to correct an erroneous interpretation of the law should displace the doctrines of res judicata and collateral estoppel (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277, cert denied 488 US 1005; Matter of McKenna [Can Am Rapid Courier], 233 AD2d 704, lv denied 89 NY2d 810; Matter of Punnett v Evans, 26 AD2d 396, 398). Waste transfer stations are heavily regulated because of their impact on local communities. The record reveals that facilities comparable in their activity to those of petitioner have been classified by respondent Department of Sanitation as transfer stations requiring a permit pursuant to the provisions of the Administrative Code. In view of the City’s interest in regulating these facilities, respondents should be permitted to ensure that there is uniform treatment of comparable facilities. We note that the substantive issue of whether petitioner’s facility is a transfer station subject to regulation has yet to be decided by the Environmental Control Board. Concur — Rosenberger, J. P., Williams, Mazzarelli, Rubin and Buckley, JJ.