In the Matter of the Application of Citylights at Queens Landing, Inc., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
New York City Department of Environmental Protection and New York City Water Board, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
David Elliot, J.
In this Article 78 proceeding, petitioner Citylights at Queens Landing Inc. (Citylights), seeks an order restoring the proceeding to the calendar and, upon restoration, a judgment vacating the water bill of February 26, 2004 and restricting respondent New York City Water Board (Water Board) from back billing petitioner for charges allegedly incurred more than two years prior to the issuance of a bill.
Petitioner Citylights initially commenced an Article 78 proceeding on August 22, 2006, in which it sought to vacate the water bill of February 26, 2004 and to restrict the Water Board's back billing to a two-year period. The parties thereafter sought to settle the matter and, pursuant to a stipulation entered into between the parties on October 6, 2006, the proceeding was marked off the calendar on October 17, 2006. On June 29, 2007 the parties stipulated to restore the matter to the court's calendar pursuant to an amended petition made returnable on September 18, 2007. That stipulation was not so ordered by the court. Petitioner, thereafter, served the within motion on August 27, 2007, which was made returnable on September 18, 2007, and seeks a judgment on the amended petition or, in the alternative, an order restoring the matter to the calendar.
Petitioner's request to restore this matter to the calendar is granted. In view of the fact that the petition, answer and all papers in support and opposition to the proceeding have been fully submitted, the petition is decided as follows:
Citylights is the long term lessee of a 42 story building located at 474 48th Avenue, Long Island City, New York. Queens West Development Corp. is the owner of the premises known as 4-15 49th Street to 48-09 Center Boulevard, Block 18, Lot 1, which includes the subject improved real property. This subject building was constructed in 1997 by Parcel 10 Associates, L.P., the sponsor of the cooperative plan, and contains 522 residential units, 14 commercial units, and a public school. On July 7, 1997, the New York City Department of Environmental Protection (DEP) issued permits to install water meters on the subject property, and two water meters bearing numbers N84001054 (Meter 54) and N84001316 (Meter 16) were installed as "entire premises" meters. The building is billed on a quarterly-metered basis under account number 9000856848001. The DEP commenced billing this account on December 17, 1997, via two six inch by one inch compound meters. The DEP issued regular bills and performed inspections of the meters and the customer paid its bills. Citylights, pursuant to its lease with Queens West Development Corp. is required to pay all water charges relating to water usage at the subject buildings and has paid these bills.
On February 3, 2004, the DEP conducted an inspection and determined that, due to incorrect measurements provided by the owner's plumber, the two meters installed on the premises were billed with an incorrect multiplier, i.e. the number by which a meter reading must be multiplied to convert the reading into units of hundreds of cubic feet.
On February 23, 2004, the DEP adjusted the charges by cancelling $111,170.30 in charges and upwardly re-billing both meters for a total of $491,274.00, for the period of February 3, 2000 to February 3, 2004. A new water bill was issued to Queens West Development Corp., care of Citylights, in the sum of $379,740.26. For the four-week period of January 7, 2000 through February 3, 2000, no upward adjustment was made, as this period was beyond the four-year period of limitations set forth in the Water Board Rules.
On May 13, 2005 the DEP received a telephone call from an attorney disputing the February 23, 2004 bill, and advised counsel to submit a written complaint. No complaint was made to the DEP at that time. On June 6, 2005, the DEP sent a letter to Citylights in which it stated in pertinent part that:
"A review of your account history shows that charges for the service period July 7, 1997 through November 30, 2003 were grossly under- billed at an average daily consumption
(ADC) of approximately 20 hundred cubic feet
(HCF). This was due to a clerical error, which resulted in the 6" registers of the two domestic meters being billed for one-tenth of their actual usage .
The error was discovered on February 3, 2004 and the billing was revised accordingly. Charges previously issued in the amount of $111,170.30 were cancelled and reissued in the amount of $491,274.00-a net increase of $380,103.70. The revised ADC of 97HFC is consistent with a well-maintained building of a similar size.
Under the NYC Water Board's rules, bill revisions of this type (i.e., upward adjustments of previously billed service) are limited to a period of four years from the date of service provided. A reasonable administrative delay is permitted between the date of discovery of an under-billed period and the date the revised bill is issued. Accordingly the revised bill issued February 23, 2004 covers the service period February 3, 2000 through February 3, 2004. It should be noted that the service period July 7, 1997 through ...