| Matter of Bayley Seton Hosp. v New York City Water Bd. |
| 2009 NY Slip Op 07248 [66 AD3d 670] |
| October 6, 2009 |
| 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, and a determination of the New York City Water Board dated March 4,2005, providing only a three-month grace period within which customers could submit claimsconcerning their bills for water and wastewater charges that would otherwise have beenimmediately time-barred by the adoption of the four-year limitations' period set forth in Rules ofCity of New York Department of Environmental Protection (15 RCNY) Appendix A, part IX,§§ 1-2, the New York City Water Board, City of New York, and New York CityDepartment of Environmental Protection appeal from a judgment of the Supreme Court,Richmond County (Minardo, J.), dated June 16, 2008, which granted the petition to the extent ofannulling the determination dated March 4, 2005, as violative of due process, and annulling thedetermination dated February 20, 2004, on the same ground and remitting the matter to the NewYork City Water Board for a determination of the merits of the petition, a recalculation of thesums actually due on the bill dated September 23, 1998, and the issuance of a refund to thepetitioners, with interest, if warranted.
Ordered that the judgment is reversed, on the law, with costs, the petition is denied, thedeterminations are confirmed, and the proceeding is dismissed on the merits.
On July 29, 2003 the petitioners filed a written complaint with the 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. On December 3, 2003 theDEP determined that the petitioners' challenge to the bill was time-barred by the four-yearlimitations' period on such claims, codified in Rules of City of New York Department ofEnvironmental Protection (15 RCNY) Appendix A, part IX, §§ 1-2, and effective onJuly 1, 2002. The limitations' period in question required an administrative complaintchallenging an overcharge for water or wastewater discharges to be filed with the DEP withinfour years of the date of the relevant bill. The petitioners appealed the DEP's determination to theNew York City [*2]Water Board (hereinafter the Water Board),which denied the appeal in a determination dated February 20, 2004. The petitioners commencedthis CPLR article 78 proceeding to review the Water Board's determination. The Supreme Courtdetermined that the appellants improperly applied the four-year limitations' period retroactively.In a decision and order dated December 4, 2007, this Court reversed the Supreme Court's orderinsofar as appealed from, finding, among other things, that the retroactive application of thefour-year limitations' period was not illegal, arbitrary and capricious, or irrational (see Matter of Bayley Seton Hosp. v NewYork City Water Bd., 46 AD3d 553 [2007]). However, we remitted the matter to theSupreme Court, Richmond County, for a determination as to whether a resolution of the WaterBoard dated March 4, 2005, establishing a three-month grace period for the filing of claims byclaimants whose challenges to water and wastewater bills would otherwise have beenimmediately time-barred by the adoption of the new four-year limitations' period, was reasonableand complied with due process requirements, or was instead illegal, arbitrary and capricious, oran abuse of discretion. The Supreme Court determined that the resolution failed to comply withdue process requirements, and "was ill-advised at the outset, and illusory in practice." Wereverse.
In Brothers v Florence (95 NY2d 290 [2000]), the Court of Appeals, discussingcircumstances in which the enactment of a reduced limitations' period would result in animmediate time bar, stated, "[w]hen . . . a limitations' period is statutorilyshortened, or created where none existed before, Due Process requires that potential litigants beafforded a 'reasonable time . . . for the commencement of an action before the bartakes effect' " (id. at 300-301, quoting Terry v Anderson, 95 US 628, 632-633[1877]).
Since the petitioners' challenge to the bill dated September 23, 1998 was not immediatelytime-barred by the enactment of the four-year limitations' period, under Brothers, therelevant inquiry is not the propriety of the three-month grace period adopted by the resolutiondated March 4, 2005, but whether the interval between the enactment of the four-year limitations'period in July 2002 and the last date on which the petitioners' claim would have been untimelythereunder—here, almost three months later—provided the petitioners with areasonable opportunity to interpose a claim (see Brothers v Florence, 95 NY2d at 305).Although the appellants failed to advance this particular contention before the Supreme Court,this issue may be raised for the first time on appeal since it is one of law appearing on the face ofthe record and it could not have been avoided had it been raised at the proper juncture (see e.g. Honeyman Point Beach Assn., Ltd.v Schiff, 64 AD3d 681 [2009]).
Judicial review of a determination of an administrative agency such as those made here islimited to ascertaining whether the agency's action was illegal, arbitrary and capricious, or anabuse of discretion (see Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Arceri v Town of Islip ZoningBd. of Appeals, 16 AD3d 411, 412 [2005]; Matter of Bracke v Zoning Bd. ofAppeals of Town of Philipstown, 304 AD2d 663, 663-664 [2003]; Matter ofWestmoreland Apt. Corp. v New York City Water Bd., 294 AD2d 587, 588 [2002]). Here,as the appellants correctly observe, the petitioners' claim was not immediately time-barred whenthe four-year limitations' period was first adopted. The interval between the adoption of thefour-year limitations' period on July 1, 2002 and the last date on which the petitioners' claimwould have been untimely thereunder, September 23, 2002, provided the petitioners with areasonable opportunity to interpose their claim. This interval properly served the goal ofimmediately curtailing the longer limitations' period previously in effect, and it did not unfairlycurtail the petitioners' right to pursue their claim (cf. Brothers v Florence, 95 NY2d at305). We also note the absence here of the element of unfairness discussed in Brothers,where a plaintiff whose cause of action was not immediately time-barred by the adoption of thenew, shorter limitations' period would have had substantially less time within which to assert aclaim than those plaintiffs whose claims were immediately time-barred, with the otherwisetime-barred plaintiffs enjoying the benefit of a one-year grace period (see id. at 306).Accordingly, since the petitioners failed to assert their claim before the expiration of the newlyimposed four-year limitations' period on September 23, 2002, their challenge to the bill at issueis time-barred.
In light of our determination, we need not reach the petitioners' remaining contention.Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur.