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1940 Ocean Avenue, LLC v. the City of New York and the New York City Department of Environmental Protection

New York Supreme and/or Appellate Courts Appellate Term, First Department


May 12, 2011

1940 OCEAN AVENUE, LLC., PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK AND THE NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS-RESPONDENTS.

Per curiam.

1940 Ocean Ave., LLC v City of New York

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 12, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Plaintiff, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated October 12, 2010, which granted defendants' motion to dismiss the complaint.

Order (Manuel J. Mendez, J.), dated October 12, 2010, affirmed, with $10 costs.

The Civil Court properly dismissed this action seeking a refund for overpaid water charges against defendants City of New York and the New York City Department of Environmental Protection (DEP). DEP specifically provides for an administrative review process (see Matter of Lechar Realty Corp. v Lawitts, 20 Misc 3d 1121[A], 2008 NY Slip Op 51494[U] [2008]), which plaintiff did not pursue, thus failing to exhaust its available administrative remedies in connection with the adverse determination of the agency (see Smilow v New York City Dept. of Fin. Parking Violations Adjudications Div., 68 AD3d 413, 414 [2009]; Troni v City of New York, 27 Misc 3d 139[A], 2010 NY Slip Op 50936[U] [2010]; Hong Mai v City of New York, 8 Misc 3d 135[A], 2005 NY Slip Op 51179[U] [2005]), or to seek review of any final adverse DEP determination by way of a CPLR article 78 proceeding (see Matter of Citylights at Queens Landing, Inc. v New York City Dept. of Envtl. Protection, 62 AD3d 871 [2009], lv denied 13 NY3d 706 [2009]; Matter of Westmoreland Apt. Corp. v New York City Water Bd., 294 AD2d 587, 588 [2002]; Perry Thompson Third Co. v City of New York,279 AD2d 108, 115 [2000]); Matter of 184 Kent Ave. Assoc. v Miele, 271 AD2d 611 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: May 12, 2011

20110512

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