NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 11, 2008
IN RE SB & W REALTY CORP., PETITIONER-APPELLANT,
NEW YORK CITY WATER BOARD, ET AL., RESPONDENTS-RESPONDENTS.
Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered May 21, 2007, which denied petitioner's application to annul respondent Water Board's determination surcharging petitioner for failing to timely install a water meter, and dismissed the petition, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Sweeny, Catterson, Moskowitz, JJ.
The determination is rationally based (see generally Matter of MHG Family Ltd. Partnership v New York City Water Bd., 46 AD3d 472 ) on evidence that the meter that was installed on petitioner's property before the June 30, 2000 deadline was not sealed and did not have a remote reading device, and since it could not be read, was useless. Petitioner's claim that it had no way of knowing that the meter, allegedly installed by respondent's contractor, was not installed properly is undermined by respondent's notices to petitioner, which should have alerted petitioner that respondent believed no meter was installed on petitioner's property. Indeed, petitioner's original argument against the surcharge was that it had timely asked respondent to install a meter. The calculation of petitioner's wastewater charge based on 159% of its water charge, including a surcharge, was neither arbitrary, capricious, nor a violation of law (see Haav 575 Realty Corp. v New York City Water Bd., 38 AD3d 481 ). To the extent that the decision of the Appellate Division, Second Department, in Matter of Pistilli Assoc. III, LLC v New York City Water Bd. (46 AD3d 905 ) calls for a different result, we disagree.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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