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Decided on March 15, 2007
Supreme Court, Albany County

5784-06
Oliver & Oliver Attorneys for Petitioner-Plaintiffs (Lewis B. Oliver, Esq., of Counsel) 156 Madison Avenue Albany, New York 12202 Eliot Spitzer Attorney General
State of New York
(Jaime I. Roth, Esq., Assistant Attorney General of Counsel)
The Capitol
Albany, New York 12224
George B. Ceresia, J.
Petitioner-plaintiffs commenced the instant hybrid action for a declaratory judgment and article 78 proceeding challenging a determination of Anita M. Gabalski, the Director of the Glens Falls District Office of the Department of Health, which found that [*2]the Dippikill Wilderness Retreat was a temporary residence subject to the permit requirements of the State Sanitary Code, 10 NYCRR subpart 7-1.
The complaint-petition alleges that the determination was arbitrary and capricious and made in excess of jurisdiction on the grounds that the Dippikill Wilderness Retreat comes within two exceptions to the applicability of the permit requirements which exempt "a temporary residence used as a school or college dormitory, or a fraternity or sorority house that is affiliated with an academic institution approved under the Education Law" and "a temporary residence which the commissioner, based upon consideration of the nature, duration and continuity of its occupancy, the degree of occupant control over the use and nature of the property's facilities, the purpose of the property's occupancy and the extent to which the property may be subject to the regulation of other agencies, reasonably determines not to be within the intent of regulation under this Subpart." (10 NYCRR

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