On May 6,1966 respondent and the Village of Victor were directed to answer charges that they were discharging inadequately treated sewage and industrial wastes into Great Brook, Ontario County, in contravention of standards promulgated under article 12 of the Public Health Law. Following a hearing, the appellant made an order, pursuant to section 1223 of the Public Health Law, directing respondent to undertake certain actions and activities designed eventually to effect a more adequate treatment of discharges and industrial wastes from respondent’s plant. Thereafter, on January 19, 1968, respondent commenced this proceeding under CPLR article 78 to review and annul the Commissioner’s order, alleging that section 1220 and subdivision 3 of section 1242 of the Public Health Law were unconstitutional, that it was the victim of discriminatory enforcement, and that the order was arbitrary, capricious, unreasonable, and failed to contain adequate standards capable of being performed. While this proceeding was commenced almost one year after service of the order on January 26,1967, Special Term found that the order did not become final and binding, and thus subject to judicial review, until October 1, 1967, the last specified deadline for compliance contained in the order and that accordingly since the proceeding was commenced within four months of October 1,1967, it was timely pursuant to subivision 2 of section 1244 of the Public Health Law. I agree with Special Term. The phrase “ final and binding ” as utilized in subdivision 2 of section 1244 “means that the action must actually have impact on the petitioner ”. (8 Weinstein-KornMiller, N. Y. Civ. Prac., par. 7804.02, p. 78-73; Matter of Galuppi v. New York State Liq. Auth., 12 A D 2d 987). “ If the order, may not affect the petitioner unless certain events occur subsequent to the determination, the period will not begin to run until those events occur. The apparent basis of this rule is that a party should not be put to the expense of challenging action which may not affect him, on pain of having his proceeding barred as untimely if it turns out that as a result of subsequent events he is affected.” (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7804.02, p. 78-73.) In Matter of Castaways Motel v. Schuyler (24 N Y 2d 120, 126-127), the Court of Appeals citing this commentary with approval, noted that a party should not be put in a position of having to guess when a ‘ ‘ final and binding ’ ’ determination had been made and then went on to state: “ In dealing with this dilatory defense the courts should resolve a:;. *192ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court.” Here the exact obligations imposed on respondent were left to future administrative action, review and approval and were thus nonfinal (Matter of Feldman v. Department of State of State of N. Y., 28 A D 2d 1106; Matter of Robinson v. Krulewitch, 18 Misc 2d 285). The majority position in assuming that the determination had impact on the petitioner prior to October 1, 1967 overlooks this fact. Clearly further administrative review was contemplated of the engineering plans to provide for pretreatment of the waste generated by petitioner’s plant before it was transmitted to the facilities maintained by the Village of Victor. The majority statement, that subdivision 1 of section 1244 controls, has no support in the legislative history. The second sentence of this subdivision, introducing the shorter statutory period, was added in 1964 (L. 1964, ch. 212), at the behest of the Department of Health (N. Y. Legis. Annual, 1964, p. 609). Its memorandum in support of the bill made no mention of any change of the usual rule that only final decisions be subject to judicial review (1964 Session Laws, p. 1000). Accordingly, the order appealed from should be affirmed.
Herlihy, J. P., .Cooke and Greenblott, JJ., concur in Per Curiam opinion; Reynolds, J., dissents and votes to affirm, in an opinion. Aulisi, J., not voting.
Order reversed, on the law and the facts, and petition dismissed, with costs.