| Matter of Bayley Seton Hosp. v New York City Water Bd. |
| 2007 NY Slip Op 09585 [46 AD3d 553] |
| December 4, 2007 |
| Appellate Division, Second Department |
| In the Matter of Bayley Seton Hospital et al.,Respondents, v New York City Water Board et al.,Appellants. |
—[*1] Goldberg & Bokor, LLP, Long Beach, N.Y. (Scott Goldberg of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78, inter alia, to review so much of a determinationof the New York City Water Board dated February 20, 2004, as denied the petitioners'administrative appeal seeking a reduction in charges on a water and wastewater bill datedSeptember 23, 1998, the New York City Water Board, City of New York, and New York CityDepartment of Environmental Protection appeal (1) from a judgment of the Supreme Court,Richmond County (Minardo, J.), dated January 5, 2005, which, upon a decision of the same courtdated December 21, 2004, in effect, granted so much of the petition as sought a reduction incharges on the water and wastewater bill dated September 23, 1998, and is in favor of thepetitioners and against the New York City Water Board in the principal sum of $103,159.25, and(2), as limited by their brief, from so much of an order of the same court dated April 29, 2005, as,upon reargument, adhered to its determination, in effect, granting so much of the petition assought a reduction in charges on the water and wastewater bill dated September 23, 1998, but,upon vacating so much of the judgment as was in favor of the petitioners and against the NewYork City Water Board in the principal sum of $103,159.25, directed them to calculate thecharges for the period covered by the bill dated September 23, 1998, and to issue any refund dueto the petitioners based on those calculations, with interest calculated from the date of payment,if any, made by the petitioners.[*2]
Ordered that the appeal from the judgment is dismissed,as the judgment was superseded by the order made upon reargument; and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Richmond County, for a new determination on so muchof the petition as sought a reduction in charges on the water and wastewater bill dated September23, 1998, in accordance herewith.
On July 29, 2003 the petitioners filed a written complaint with the appellant New York CityDepartment of Environmental Protection (hereinafter the DEP) seeking, inter alia, a reduction incharges on a water and wastewater bill dated September 23, 1998 (hereinafter the bill). OnDecember 3, 2003 the DEP determined, among other things, that the petitioners' claim regardingthe bill was time-barred because the petitioners did not file a written complaint within four yearsof the date of the bill. The petitioners appealed this determination to the appellant New York CityWater Board (hereinafter the Board). On February 20, 2004 the Board denied the petitioners'administrative appeal and, inter alia, determined that the DEP correctly declined to review theclaim regarding the bill, because "it fell outside the four-year complaint filing window." TheBoard explained that it approved an administrative provision, effective July 1, 2002, requiringthat all complaints regarding a water and wastewater bill must be filed with the DEP within fouryears of the date of the bill, or such bill would not be considered for adjustment (hereinafter theprovision). The Board explained that billing complaints received by the DEP on or after July 1,2002, are evaluated in light of the provision.
The petitioners commenced this CPLR article 78 proceeding to review the Board'sdetermination dated February 20, 2004. The petitioners contended, inter alia, that the appellantsimproperly applied the four-year limitations period to the complaint they filed in July 2003regarding the bill. They contended that the provision could not be applied retroactively and that asix-year limitations period was applicable to the bill since that was the limitations period in effectwhen the bill was issued in September 1998. They also contended that the appellants treatedthem differently from other, similarly-situated customers by applying the four-year limitationsperiod to their complaint about the bill.
Contrary to the petitioners' assertions, and the Supreme Court's determination, the petitionersfailed to show that the appellants' decision to apply the four-year limitations period "neitheradhere[d] to [their] own prior precedent nor indicate[d] [the] reason for reaching a different resulton essentially the same facts" (Matter of Charles A. Field Delivery Serv. [Roberts], 66NY2d 516, 517 [1985]; see Matter ofCivic Assn. of Setaukets v Trotta, 8 AD3d 482, 483 [2004]). The petitioners thereforefailed to meet their burden of establishing that the appellants' actions were arbitrary andcapricious, or irrational, on this ground (i.e., that the appellants treated them differently fromother similarly-situated customers) (see Matter of Brannigan v Board of Commrs. of GreatNeck Park Dist., 273 AD2d 231 [2000]; Matter of Iannuzzi v Town of Brookhaven,258 AD2d 651, 652 [1999]).
Moreover, the retroactive application of the provision's four-year limitations period was notarbitrary and capricious, or irrational (see CPLR 7803 [3]; Matter of Featherstone vFranco, 95 NY2d 550, 555 [2000]; Matter of Village of Scarsdale v New York City Water Bd., 15 AD3d590, 591 [2005]; see also Matter of BETHCO Corp. v Tweedy, 7 Misc 3d 1011 [A],2004 NY Slip Op 51876 [U][2004]). Although the Supreme Court did not expressly consider theissue of the provision's retroactive application, we consider this issue, which was properly raisedbefore the Supreme Court (see e.g. Matter of DePaola v Zoning Bd. of [*3]Appeals of Vil. of Dobbs Ferry, 226 AD2d 371, 372 [1996]), inlight of our determinations in Matter of38 Park Ave. Assn., LLC v Tweedy (33 AD3d 807 [2006]) and Matter of Amalgamated Warbasse Houses,Inc. v Tweedy (33 AD3d 794 [2006]). Although the retroactive application of statutes isnot favored absent language expressly or by necessary implication requiring it (see Majewskiv Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]), the Board's "eliminationof the distinction between the application of the limitations period to bills issued prior to theimplementation of the relevant rate schedule and those issued thereafter, as well as the legislativehistory, supports a finding that the four-year limitations period was intended to be appliedretroactively" (Matter of Amalgamated Warbasse Houses, Inc. v Tweedy, 33 AD3d at795; see Matter of 38 Park Ave. Assn.,LLC v Tweedy, 33 AD3d 807 [2006]; Matter of BETHCO Corp. v Tweedy, 7Misc 3d 1011 [A], 2004 NY Slip Op 51876 [U] [2004]).
However, when, as here, a limitations period is statutorily shortened, or when a limitationsperiod is created where none previously existed, "[d]ue process requires that potential litigants beafforded a 'reasonable time . . . for the commencement of an action before the bartakes effect' " (Brothers v Florence, 95 NY2d 290, 300-301 [2000], quoting Terry vAnderson, 95 US 628, 632-633 [1877]; see Matter of Amalgamated Warbasse Houses,Inc. v Tweedy, 33 AD3d at 795-796). The Board issued a resolution dated March 4, 2005(hereinafter the resolution), in which it provided for a three-month grace period following theimplementation of the four-year limitations period, within which customers whose claims wereimmediately time-barred by the four-year limitations period could submit their claims. Since theSupreme Court did not address whether the resolution was reasonable and complied with theaforementioned due process requirements, or was arbitrary, capricious, or an abuse of discretion,we remit the matter to the Supreme Court, Richmond County, for a determination of those issues(see CPLR 7803 [3]; Matter of Amalgamated Warbasse Houses, Inc. v Tweedy,33 AD3d at 796). Ritter, J.P., Goldstein, Florio and Lifson, JJ., concur.