Matter of Greenwich House Holding Corp. v New York City Water Bd.

Matter of Greenwich House Holding Corp. v New York City Water Bd. 2008 NY Slip Op 09704 [57 AD3d 285] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Greenwich House Holding Corp., Respondent,
v
New York City Water Board et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants.

Goldberg & Bokor, LLP, Long Beach (Scott Goldberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Louis B. York, J.), entered August 14, 2007, which granted petitioner's application to annul respondent Water Board's determination surcharging petitioner for failing to timely install a water meter, unanimously reversed, on the law and the facts, without costs, the application denied and the petition dismissed.

Respondents' decision not to accept petitioner's election of metered billing form as a request for meter installation was not arbitrary and capricious (see Matter of MHG Family Ltd. Partnership v New York City Water Bd., 46 AD3d 472 [2007]). Nor does estoppel apply (see Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33 [1984]; Matter of 333 E. 89 Realty v New York City Water Bd., 272 AD2d 549, 550 [2000], lv denied 95 NY2d 762 [2000]), particularly since respondent Department of Environmental Protection's predeadline March 31, 2000 notice should have alerted petitioner that the election of metered billing form was not being regarded as a request for meter installation. The calculation of petitioner's wastewater charge based on 159% of its water charge, including the surcharge for failing to timely install the meter, was neither arbitrary, capricious, nor a violation of law (see Haav 575 Realty Corp. v New York City Water Bd., 38 AD3d 481 [2007]). To the extent that the decision of the Appellate [*2]Division, Second Department, in Matter of Pistilli Assoc. III, LLC v New York City Water Bd. (46 AD3d 905 [2007]) calls for a different result, we disagree. Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.