Park off Broadway, LLC v. N.Y.C. Water Bd.

2024 NY Slip Op 00937

In the Matter of Park Off Broadway, LLC, Petitioner-Respondent, v. New York City Water Board et al., Respondents-Appellants.

Appeal No. 1720, Index No. 156387/21, Case No. 2023-00456

Supreme Court of New York, First Department

February 22, 2024

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jonathan A Popolow of counsel), for appellants.

Wrobel Markham LLP, New York (David C. Wrobel of counsel), for respondent.

Before: Oing, J.P., Kapnick, Kennedy, Mendez, Higgitt, JJ.

Order Supreme Court, New York County (Laurence Love, J.), entered April 5, 2022, which denied respondents' cross-motion to dismiss the petition seeking, among other things, a reduction in water billing charges, as time-barred pursuant to CPLR 3211(a)(5) and CPLR 217(1), unanimously reversed, on the law without costs, the cross-motion granted, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed.

Petitioner's article 78 petition challenging its water bill must be dismissed as untimely because it was filed more than four months after the New York City Water Board's final determination (see CPLR 217[1]). The Board's July 31, 2020 letter was the final agency determination of petitioner's billing dispute. The letter's statement that it was "the final review of this billing dispute" put petitioner "on notice that all administrative appeals ha[d] been exhausted" (Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270 [2000]). This notice was consistent with the regulations in the Board's Rate Schedule describing its three-step appeals process culminating in a "final appeal" to the Executive Director of the Board.

Petitioner's subsequent communications with respondents requested reconsideration of the same billing charges already finally determined in the Board's July 31, 2020 letter, notwithstanding petitioner's efforts to characterize the ongoing dispute as a "new case." Because petitioner's letters after July 2020 were "request[s] for reconsideration of an administrative determination," they did "not extend the four-month limitations period" (Matter of Eldaghar v New York City Hous. Auth., 34 A.D.3d 326, 327 [1st Dept 2006], lv denied 8 N.Y.3d 804 [2007]).

That a factual issue about the size of petitioner's meter line was neither raised nor addressed during his administrative appeal does not make the Board's determination any less final, nor does it entitle petitioner to a successive appeal with a new statute of limitations. Because respondents' "subsequent denials" of petitioner's requests for reconsideration "merely referenced [the] original denial" and did not include ...