
    Allegro Oil & Gas, Inc., Respondent, v Bruce C. McGranahan, as Region 9 Mineral Resource Program Manager of New York State Department of Environmental Conservation, et al., Appellants.
   Order unanimously affirmed without costs. Memorandum: We affirm for the reasons stated at Supreme Court, Sprague, J. We add only that, in our view, plaintiff is not precluded from seeking declaratory relief by any provision of the consent order relating to brine disposal. Whether plaintiff properly disposes of the brine generated at its Duke and Krampf facilities depends upon the applicability of 6 NYCRR 556.5 (b) to those sites; plaintiff seeks a declaration in this regard. Further, we do not address the brine disposal conditions imposed by the well-drilling permit identified as appendix A of appellant’s brief. The permit is not a part of the record on appeal because "[mjatters contained in the brief, not properly presented by the record, are not to be considered by an appellate court” (Mulligan v Lackey, 33 AD2d 991, 992). (Appeal from order of Supreme Court, Allegany County, Sprague, J. — dismiss action.) Present — Callahan, J. P., Denman, Boomer, Balio and Davis, JJ.  