| Matter of Home Depot U.S.A., Inc. v Town Bd. of the Town ofSoutheast |
| 2010 NY Slip Op 00962 [70 AD3d 824] |
| February 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Home Depot U.S.A., Inc., et al.,Respondents, v Town Board of the Town of Southeast et al.,Appellants. |
—[*1] Keane & Beane, P.C., White Plains, N.Y. (Richard L. O'Rourke of counsel), for appellantIndependent Sewage Works, Inc. Albert A. Natoli, P.C., New York, N.Y., for respondents.
In a consolidated proceeding pursuant to CPLR article 78, inter alia, to compel the TownBoard of the Town of Southeast and the Town of Southeast to review the sewage rates ofIndependent Sewage Works, Inc., the Town Board of the Town of Southeast and the Town ofSoutheast appeal, and Independent Sewage Works, Inc., separately appeals, from an order andjudgment (one paper) of the Supreme Court, Westchester County (Cohen, J.), entered February5, 2009, which denied their motion to dismiss the consolidated proceeding, and granted thatbranch of the petitioners' cross motion which was for summary judgment on so much of thepetitions as sought to compel the Town Board of the Town of Southeast and the Town ofSoutheast to review the sewage rates charged by Independent Sewage Works, Inc., because fiveyears had elapsed since the last review.
Ordered that the order and judgment is modified, on the law, by deleting the provisionthereof denying that branch of the motion of the Town Board of the Town of Southeast, theTown of Southeast, and Independent Sewage Works, Inc., which was to dismiss so much of theconsolidated proceeding as sought to compel the Town Board of the Town of Southeast and theTown of Southeast to consider the issues raised in the petitioners' administrative complaint tothose entities, and substituting therefor a provision granting that branch of the motion; as somodified, the order and judgment is affirmed, without costs or disbursements.
On June 23, 2005, the petitioners filed an administrative complaint (hereinafter thecomplaint) with the Town of Southeast and the Town of Southeast Town Board (hereinaftertogether the Town) seeking to compel the Town to review and then reduce the rates asewage-works corporation, Independent Sewage Works, Inc. (hereinafter ISW), was chargingthem. When the Town failed to take any action on the complaint, the petitioners commenced aCPLR article 78 proceeding to compel the Town to consider the issues raised in their complaint.Further, the petitioners sought to compel the Town, [*2]pursuantto Transportation Corporations Law § 121, to review the rates ISW was charging thembecause the Town was required to do so at "intervals of not more than five years." After thepassing of the five-year anniversary from the last time the Town reviewed ISW's rates, thepetitioners brought a second CPLR article 78 proceeding seeking the same relief as the first, andthe two proceedings were consolidated. The Town and ISW moved to dismiss the consolidatedproceeding, and the petitioners cross-moved for summary judgment. The Supreme Court deniedthe motion and granted the cross motion to the extent of directing the Town to review the sewagerates charged by ISW, ensuring that such rates are, as required by Transportation CorporationsLaw § 121, fair, reasonable, and adequate.
The Supreme Court should have dismissed so much of the consolidated proceeding as soughtto compel the Town to consider the issues raised in the complaint to the Town. Althoughcharacterized as a CPLR article 78 proceeding in the nature of mandamus to compel, that portionof the consolidated proceeding, in essence, sought to have the sewage rates reviewed, which isproperly accomplished by way of a CPLR article 78 proceeding in the nature of mandamus toreview (see State of New York v Cortelle Corp., 38 NY2d 83, 86 [1975]; Matter of Guzman v 188-190 HDFC,37 AD3d 295, 296 [2007]). The petitioners "cannot avoid the bar of the Statute ofLimitations by seeking relief in the nature of mandamus to compel" (Matter of Thomas vCity of Buffalo Inspections Dept., 275 AD2d 1004 [2000]). The Town's determinationsetting the sewage rates ISW could charge the petitioners became "final and binding" on July 18,2002 (see CPLR 217 [1]; Matter of Yarbough v Franco, 95 NY2d 342, 346[2000]). The petitioners did not commence these proceedings, which were subsequentlyconsolidated, within four months of that date, making so much of the consolidated proceeding assought to compel the Town to consider the issues raised in their complaint to the Town untimely.Moreover, even if correctly characterized as a CPLR article 78 proceeding in the nature ofmandamus to compel and therefore timely, the petitioners nevertheless failed to demonstrate thatthey have a clear legal right under Transportation Corporations Law § 121 to compel theTown to consider the issues raised in their complaint to the Town (see Matter of Brusco vBraun, 84 NY2d 674, 679 [1994]; Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 433[2006]).
However, the Supreme Court properly granted that branch of the petitioners' cross motionwhich was for summary judgment on so much of the petitions as sought to compel the Town toreview the rates charged by ISW because five years had passed since the last time the Town hadundertaken such review. Contrary to the contention of the Town and ISW, this portion of theconsolidated proceeding is not barred by the statute of limitations. The Town last reviewed thesewage rates ISW charges the petitioners on July 18, 2002, and, under TransportationCorporations Law § 121, "[r]ates shall be reviewable at intervals of not more than fiveyears." Less than four months after July 18, 2007, the date when the Town should haveconducted its statutory review, the petitioners brought the second petition, making it timely(see CPLR 217 [1]; EMP ofCadillac, LLC v Assessor of Vil. of Spring Val., 15 AD3d 336, 338 [2005];Community Bd. No. 3 v State of N.Y., Off. of Mental Retardation & Dev. Disabilities,76 AD2d 851, 852 [1980]). Moreover, the petitioners established a clear legal right to compel theTown to review the sewage rates charged by ISW. More than five years have passed since thelast time the Town reviewed the rates ISW charges the petitioners, a fact which the Town doesnot dispute, and the text of Transportation Corporations Law § 121, by use of themandatory language "shall" (Matter of Lanzi v Lanzi, 298 AD2d 53, 57 [2002]), requiresthe Town to undertake that review now. Accordingly, the Supreme Court correctly awardedsummary judgment to the petitioners compelling the Town to review the sewage rates chargedby ISW because five years had elapsed since the last review. Skelos, J.P., Eng, Leventhal andChambers, JJ., concur. [Prior Case History: 22 Misc 3d 1134(A), 2009 NY Slip Op50420(U).]