Matter of Kinsella v. New York State Pub. Serv. Commn.
Docket 2021-06572 DECISION, ORDER & JUDGMENT
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Administrative
- Disposition
- Dismissed
- Citation
- 2026 NY Slip Op 02654
- Docket
- 2021-06572 DECISION, ORDER & JUDGMENT
CPLR article 78 proceeding seeking review of a Public Service Commission determination granting a certificate under Public Service Law § 128
Summary
The Appellate Division, Second Department dismissed a CPLR article 78 proceeding brought by Simon Kinsella challenging a March 18, 2021 Public Service Commission determination that granted South Fork Wind, LLC a certificate for an offshore submarine export cable. The court granted motions by the Commission, Department of Public Service, and South Fork Wind to dismiss because the petitioner failed to timely join South Fork as a necessary party within the 30-day limitations period following the Commission’s final order. Because the defect was jurisdictional under the governing statute and precedent, the court dismissed the proceeding without costs.
Issues Decided
- Whether the petitioner timely joined South Fork Wind, LLC as a necessary party to a CPLR article 78 proceeding challenging a PSC determination
- Whether failure to join a required party within the 30-day limitations period warrants dismissal of the proceeding
Court's Reasoning
The court relied on Public Service Law § 128 and controlling precedent holding that a petitioner must join a certificate recipient as a necessary party within the 30-day statute of limitations after a final PSC order. Because the petitioner did not timely join South Fork, the procedural defect deprived the court of the proper party alignment for review and barred relief, so dismissal was required. Controlling case law cited supports dismissal in similar circumstances.
Authorities Cited
- Public Service Law § 128
- Matter of 2214 Rt 208, LLC v Town of Montgomery Zoning Bd. of Appeals246 AD3d 904
- Matter of Greens at Half Hollow, LLC v Suffolk County Dept. of Pub. Works147 AD3d 942
- Matter of Incorporated Vil. of E. Williston v Public Serv. Commn. of State of N.Y.153 AD2d 943
Parties
- Petitioner
- Simon Kinsella
- Respondent
- New York State Public Service Commission
- Respondent
- New York State Department of Public Service
- Respondent
- South Fork Wind, LLC
- Attorney
- Ratschko Wallace PLLC (Jonathan Wallace of counsel) for petitioner
- Attorney
- Robert Rosenthal; John J. Sipos; John C. Graham; Ryan Coyne for respondent New York State Public Service Commission
- Attorney
- Couch White LLP (Leonard H. Singer, Aldiama Anthony, Brendan Wolf of counsel) for respondent South Fork Wind, LLC
- Judge
- Mark C. Dillon, J.P.
Key Dates
- Commission determination date
- 2021-03-18
- Appellate Division decision date
- 2026-04-29
What You Should Do Next
- 1
Consult appellate counsel
If the petitioner wishes to continue, consult experienced appellate counsel promptly to evaluate grounds and deadlines for further appeal or other relief.
- 2
Assess joinder and timeliness defenses
Determine whether any equitable or statutory basis exists to excuse the late joinder or to reinstate the proceeding under applicable case law.
- 3
Consider re-filing challenge
If jurisdictional or timeliness bars cannot be overcome, consider whether a new proceeding or administrative remedies remain available and feasible.
Frequently Asked Questions
- What did the court decide?
- The court dismissed the petition because the petitioner did not timely join South Fork Wind, LLC as a necessary party within the 30-day limitation period after the Public Service Commission's final order.
- Who is affected by this decision?
- The petitioner, Simon Kinsella, loses his challenge to the Commission's grant of the certificate; the Commission and South Fork Wind, LLC are no longer subject to this particular review.
- Why did the case get dismissed instead of decided on the merits?
- The dismissal was procedural: statute and precedent require that the certificate recipient be joined promptly as a necessary party, and failing to do so within the 30-day window forecloses the court's review.
- Can this be appealed?
- Yes, the petitioner could seek further appellate review, but any appeal would need to address whether the dismissal was proper given the statutory deadline and party-joinder rules.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Kinsella v New York State Pub. Serv. Commn. - 2026 NY Slip Op 02654 Matter of Kinsella v New York State Pub. Serv. Commn. 2026 NY Slip Op 02654 April 29, 2026 Appellate Division, Second Department In the Matter of Simon. Kinsella, petitioner, v New York State Public Service Commission, et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2021-06572 DECISION, ORDER & JUDGMENT Mark C. Dillon, J.P. Paul Wooten Lourdes M. Ventura Lisa S. Ottley, JJ. Ratschko Wallace PLLC, New York, NY (Jonathan Wallace of counsel), for petitioner. Robert Rosenthal, Albany, NY (John J. Sipos, John C. Graham, and Ryan Coyne of counsel), for respondent New York State Public Commission. Couch White LLP, Albany, NY (Leonard H. Singer, Aldiama Anthony, and Brendan Wolf of counsel), for respondent South Fork Wind, LLC. Proceeding pursuant to Public Service Law § 128 and CPLR article 78, inter alia, to review a determination of the respondent New York State Public Service Commission dated March 18, 2021, which, after a hearing, adopted a joint proposal and granted the application of the respondent South Fork Wind, LLC, for a certificate of environmental compatibility and public need with respect to the construction and operation of a submarine export cable in connection with a certain offshore windfarm project. Motion by the respondents New York State Public Service Commission and New York State Department of Public Service to dismiss the petition for failure to timely join the respondent South Fork Wind, LLC, as a necessary party to the proceeding. Separate motion by the respondent South Fork Wind, LLC, to dismiss the petition for failure to timely join the respondent South Fork Wind, LLC, as a necessary party to the proceeding. Upon the petition, and the papers filed in support of the motions and the papers filed in opposition thereto, it is ORDERED that the motion of the respondents New York State Public Service Commission and New York State Department of Public Service and the separate motion of the respondent South Fork Wind, LLC, to dismiss the petition for failure to timely join the respondent South Fork Wind, LLC, as a necessary party to the proceeding are granted; and it is further, ADJUDGED that the proceeding is dismissed, without costs or disbursements. On March 18, 2021, the respondent New York State Public Service Commission (hereinafter the Commission) issued a determination adopting a joint proposal which granted South Fork Wind, LLC (hereinafter South Fork), then known as Deepwater Wind South Fork, LLC, a certificate of environmental compatibility and public need pursuant to Public Service Law article 7 for a South Fork export cable project. The petitioner commenced this proceeding to review this determination. The petitioner failed to timely join South Fork as a necessary party within the 30-day statute of limitations period after issuance of a final order by the Commission ( see Public Service Law § 128; Matter of 2214 Rt 208, LLC v Town of Montgomery Zoning Bd. of Appeals , 246 AD3d 904, 906-907; Matter of Greens at Half Hollow, LLC v Suffolk County Dept. of Pub. Works , 147 AD3d 942, 944; Matter of Incorporated Vil. of E. Williston v Public Serv. Commn. of State of N.Y. , 153 AD2d 943). DILLON, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur. ENTER: Darrell M. Joseph