CIMATO BROS INC v. TOWN OF PENDLETON (1998)

Supreme Court erred in granting plaintiff's motion for summary judgment declaring unconstitutional that portion of the 1989 amendment to the Public Improvement Project Ordinance of defendant Town of Pendleton (Town) establishing a fee for the Town's cost of providing inspection services with respect to the construction of public improvements.   In order to succeed on its motion, plaintiff was required to establish beyond a reasonable doubt that there is no reasonable basis for the amended fee structure (see, Town of N. Hempstead v. Exxon Corp., 53 N.Y.2d 747, 439 N.Y.S.2d 342, 421 N.E.2d 834;   Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11-12, 390 N.Y.S.2d 827, 359 N.E.2d 337) and to negate the existence of all material issues of fact (see, Doe v. Roe, 190 A.D.2d 463, 475-476, 599 N.Y.S.2d 350, lv. dismissed 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519).   On a prior appeal, we identified several factors relevant to a determination whether a reasonable basis existed for the amended fee structure (Cimato Bros. v. Town of Pendleton, 237 A.D.2d 883, 884-885, 654 N.Y.S.2d 888).   We concluded that the Town, as the party seeking summary judgment, failed to sustain its burden to negate the existence of factual issues with respect to those factors.   In this appeal, plaintiff likewise has failed to sustain its burden to negate the existence of factual issues with respect to those factors.   Thus, its motion should have been denied, irrespective of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Order unanimously reversed on the law without costs and motion denied.

MEMORANDUM: