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St. John's Riverside Hospital v. City of Yonkers

Supreme Court of New York, Second Department

June 7, 2017

St. John's Riverside Hospital, by and through UtiliSave, LLC, appellant,
v.
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

         In an 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.

         ORDERED that the order is affirmed, with costs.

         In 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.

         In July 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 13, 2012.

         On 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.

         By 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.

         On 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 been settled.

         Thereafter, 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 and closed.

         By 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.

         The 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.

         In 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 ...


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