IN RE: SB & W REALTY CORP. (2008)

Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered May 21, 2007, which denied petitioner's application to annul respondent Water Board's determination surcharging petitioner for failing to timely install a water meter, and dismissed the petition, unanimously affirmed, without costs.

The determination is rationally based (see generally Matter of MHG Family Ltd. Partnership v. New York City Water Bd., 46 A.D.3d 472, 848 N.Y.S.2d 144 [2007] ) on evidence that the meter that was installed on petitioner's property before the June 30, 2000 deadline was not sealed and did not have a remote reading device, and since it could not be read, was useless.   Petitioner's claim that it had no way of knowing that the meter, allegedly installed by respondent's contractor, was not installed properly is undermined by respondent's notices to petitioner, which should have alerted petitioner that respondent believed no meter was installed on petitioner's property.   Indeed, petitioner's original argument against the surcharge was that it had timely asked respondent to install a meter.   The calculation of petitioner's wastewater charge based on 159% of its water charge, including a surcharge, was neither arbitrary, capricious, nor a violation of law (see Haav 575 Realty Corp. v. New York City Water Bd., 38 A.D.3d 481, 833 N.Y.S.2d 430 [2007] ).   To the extent that the decision of the Appellate Division, Second Department, in Matter of Pistilli Assoc. III, LLC v. New York City Water Bd., 46 A.D.3d 905, 850 N.Y.S.2d 136 [2007] calls for a different result, we disagree.