Opinion
November 21, 1988
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the judgment is affirmed, with costs.
We find that on the record before the Environmental Control Board, its decision to deny the petitioner's application to open its default in appearing at a hearing had a rational basis and was not arbitrary and capricious (see, Matter of Fanelli v. New York City Conciliation Appeals Bd., 90 A.D.2d 756, affd 58 N.Y.2d 952).
The petitioner had defaulted on three scheduled hearing dates and failed to submit documentary proof, as requested by the Environmental Control Board, of its newly raised claim that it did not own the premises at the time of the alleged violation. Such proof was only adduced upon the petitioner's reply papers before the Supreme Court. As disposition of the matter under a proceeding pursuant to CPLR article 78 is limited to the facts and record adduced before the agency when the administrative determination was rendered (see, Matter of Levine v. New York State Liq. Auth., 23 N.Y.2d 863), the Supreme Court properly did not consider the proof dehors the record (see, Matter of Fanelli v. New York City Conciliation Appeals Bd., supra, at 757). Mollen, P.J., Brown, Kunzeman, Weinstein and Kooper, JJ., concur.