St. John's Riverside Hospital, by and through UtiliSave, LLC, appellant,
City of Yonkers, respondent. Index No. 67577/14
Kristopher M. Dennis, New York, NY, and Garfunkel Wild, P.C.,
Great Neck, NY (Andrew L. Zwerling and Colleen M. Tarpey of
counsel), for appellant (one brief filed).
Michael V. Curti, Corporation Counsel, Yonkers, NY (Dusan
Lakic of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B.
AUSTIN, SHERI S. ROMAN, JJ.
DECISION & ORDER
action, in effect, to review a determination of the City of
Yonkers dated September 20, 2013, rejecting the request of
St. John's Riverside Hospital for an adjustment of its
water bills for services rendered prior to December 30, 2010,
St. Johns's Riverside Hospital, by and through UtiliSave,
LLC, appeals from an order of the Supreme Court, Westchester
County (Lefkowitz, J.), dated January 7, 2016, which granted
the motion of the City of Yonkers for summary judgment
dismissing the complaint as time-barred.
that the order is affirmed, with costs.
2011, St. John's Riverside Hospital (hereinafter the
hospital), retained UtiliSave, LLC (hereinafter UtiliSave),
to audit water bills issued by the City of Yonkers to the
hospital. As a result of the audit, the hospital discovered
that the City had overestimated the hospital's water
usage at one of its facilities and billed the hospital in
excess of its actual water consumption.
2012, UtiliSave, on behalf of the hospital, presented a claim
to the City for review of the hospital's water bills. In
November 2012, after inspecting the water meters, the City
issued a credit to the hospital's account. In February
and May 2013, UtiliSave wrote to the City requesting a
further review and adjustment for the maximum time period
allowed for review. The City adjusted the hospital's
account for the period of December 30, 2010, through November
August 8, 2013, UtiliSave submitted a Freedom of Information
Law (Public Officers Law art 6; hereinafter FOIL) request to
the City asking for documentation relating to back-billing
limits for adjustments. UtiliSave wrote that given that the
hospital had been overbilled since at least March 2007, the
period of review should be greater than the two-year time
period used to adjust the hospital's account.
letter dated September 20, 2013, the City, through its law
department, advised UtiliSave that the City rejected the
hospital's request for an adjustment of its water bills
for services rendered prior to December 30, 2010. In October
2013, UtiliSave sent a letter to the City as a follow up to
its FOIL request, noting that the City's counsel did not
provide any documents responsive to its request with the
September 20, 2013, letter. UtiliSave then sent a second
letter to the City's law department asking for a final
appeal of the September 20, 2013, determination.
November 1, 2013, the City issued a refund check to the
hospital in the amount of $322, 693.15 for overbilling
related to the time period of December 30, 2010, through
November 13, 2012. By letter dated November 7, 2013, the
City, through its law department, responded that the City was
not in possession of any documents responsive to
UtiliSave's FOIL request and informed UtiliSave that
there was no process for an appeal of the September 20, 2013,
determination. Further, counsel stated that the claim had
by letter dated May 14, 2014, UtiliSave wrote to the
City's Corporation Counsel asking for documentation
responsive to its FOIL request or to consider its
correspondence as a final appeal of the September 2013
determination. In a letter dated June 12, 2014, the City,
through counsel, stated that, as UtiliSave had previously
been advised, the City considered the matter fully settled
summons with notice dated October 10, 2014, the hospital,
"by and through UtiliSave, LLC" commenced this
action, in effect, to challenge the City's determination
restricting the time period for which it would review and
adjust the hospital's water bills due to overbilling.
City moved for summary judgment dismissing the complaint as
time-barred, arguing that, although the hospital classified
its causes of action as seeking damages for breach of
contract, the hospital was actually seeking relief in the
nature of a CPLR article 78 proceeding. As a result, the City
argued that the applicable four-month statute of limitations
had run prior to the commencement of the action since the
limitations period was triggered by its September 20, 2013,
determination rejecting the hospital's request for an
adjustment of its water bills for service rendered prior to
December 30, 2010.
opposition, the hospital conceded that the four-month statute
of limitations was applicable but argued that the City's
June 12, 2014, letter was the final determination related to
this matter such that its commencement of this action on