| New York Tel. Co. v Supervisor of Town of N. Hempstead |
| 2010 NY Slip Op 06299 [76 AD3d 517] |
| August 3, 2010 |
| Appellate Division, Second Department |
| New York Telephone Company, Respondent, v Supervisorof Town of North Hempstead et al., Appellants. (Action No. 1.) New York Telephone Company,Respondent, v Supervisor of Town of North Hempstead et al., Appellants. (Action No. 2.) NewYork Telephone Company, Respondent, v Supervisor of Town of North Hempstead et al.,Appellants. (Action No. 3.) Verizon New York, Inc., Formerly Known as New York TelephoneCompany, Respondent, v Supervisor of Town of North Hempstead et al., Appellants. (ActionNo. 4.) Verizon New York, Inc., Formerly Known as New York Telephone Company,Respondent, v Supervisor of Town of North Hempstead et al., Appellants. (Action No.5.) |
—[*1] Cullen and Dykman LLP, Garden City, N.Y. (Peter J. Mastaglio, Robert J. Sorge, Jr., KarenI. Levin, and Jennifer A. McLaughlin of counsel), for respondent.
In five related actions, inter alia, for judgments declaring that the imposition of special advalorem levies for garbage and refuse collection services against certain properties owned by theplaintiff is invalid, the defendants appeal from a judgment of the Supreme Court, Nassau [*2]County (Martin, J.), entered August 14, 2008, which, upon an orderof the same court entered October 11, 2006, among other things, denying that branch of thedefendants' motion which was for leave to renew their opposition to a prior motion by theplaintiff, inter alia, for partial summary judgment, is in favor of the plaintiff and against them invarious amounts.
Ordered that the judgment is affirmed, with costs.
The plaintiff owns "mass property" within the Town of North Hempstead, includingtelephone lines, wires, cables, poles, supports, and enclosures for electrical conductors. Theplaintiff commenced five actions against the defendants seeking, inter alia, judgments declaringthat their imposition of special ad valorem levies for garbage and refuse collection services onthese properties was invalid since the properties did not benefit from those services. The plaintiffmoved, among other things, for partial summary judgment declaring the levies illegal and void,enjoining the continued imposition of such levies, directing a refund in the sum of $559,991.55plus interest for the 1994-2002 tax years, and referring the calculation of damages for the 1992and 1993 tax years to trial. The Supreme Court granted that branch of the plaintiff's motion. Onthe defendants' prior appeal from that order, this Court affirmed (see New York Tel. Co. v Supervisor ofTown of N. Hempstead, 19 AD3d 465 [2005]). Relying on New York Tel. Co. v Supervisor of Townof Oyster Bay (4 NY3d 387 [2005]), this Court held that the Supreme Court correctlydetermined that the special ad valorem levies for garbage and refuse collection services imposedby the defendants were invalid because the mass properties did not and could not receive anydirect benefit from that service (seeNew York Tel. Co. v Supervisor of Town of N. Hempstead, 19 AD3d 465 [2005]).
Following the determination of the prior appeal, the defendants moved in the SupremeCourt, inter alia, for leave to renew their opposition to the plaintiff's motion for partial summaryjudgment based on the Court of Appeals' recent decision in Matter of Niagara Mohawk Power Corp. v Town of Watertown (6NY3d 744 [2005]), and based on two affidavits by Town employees concerning theHighway Department's practice of trimming branches and leaves around the plaintiff's poles andwires, with resulting debris being brought to the Town's transfer station for disposal. TheSupreme Court denied that branch of the defendants' motion which was for leave to renew. Thedefendants appealed from that order, but later withdrew that appeal. After a nonjury trial on theamount of damages for the 1992 and 1993 tax years, judgment was entered in favor of theplaintiff and against the defendants in various amounts. The defendants appeal from thejudgment. We affirm.
The Supreme Court providently denied that branch of the defendants' motion which was forleave to renew. The defendants failed to make the requisite showing that any alleged change ofthe law would have altered the prior determination (see CPLR 2221 [e]; Matter of DeRaffele Mfg. Co., Inc. vKaloakas Mgt. Corp., 48 AD3d 807 [2008]). Further, they failed to offer new factswhich were unavailable at the time of the prior motion or to provide a reasonable justification forthe failure to present such facts on the prior motion (see CPLR 2221 [e]; Crystal House Manor, Inc. v Totura,29 AD3d 933 [2006]). In any event, the newly proffered facts would not change the priordetermination (see CPLR 2221 [e]).
The defendants' remaining contentions were previously reviewed and determined againstthem on the prior appeal, and reconsideration of those issues is barred by the doctrine of the lawof the case (see CPLR 5501 [a]; Millennium Envtl., Inc. v City of Long Beach of State of N.Y., 56AD3d 739 [2008]; State of NewYork v Westchester Joint Water Works, 17 AD3d 665 [2005]; Wendy vSpector, 305 AD2d 403 [2003]).
The plaintiff's remaining contention need not be reached in light of our determination.Rivera, J.P., Florio, Miller and Hall, JJ., concur.