HAAV 575 REALTY CORP v. NEW YORK CITY WATER BOARD

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Supreme Court, Appellate Division, First Department, New York.

HAAV 575 REALTY CORP., Petitioner-Appellant, v. NEW YORK CITY WATER BOARD, et al., Respondents-Respondents.

Decided: March 29, 2007

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, CATTERSON, KAVANAGH, JJ. Goldberg & Bokor, LLP, Long Beach (Scott Goldberg of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondents.

Judgment, Supreme Court, New York County (Paul G. Feinman, J.), entered June 26, 2006, which confirmed the determination of respondent Water Board, calculating petitioner's wastewater charge based on 159% of petitioner's water charge, including a surcharge, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner was assessed a 100% surcharge for failing to install or to request the City to install a water meter for its premises (see Matter of 77 Realty, LLC v. New York City Water Bd., 16 A.D.3d 247, 792 N.Y.S.2d 36 [2005], lv. denied 5 N.Y.3d 715, 806 N.Y.S.2d 166, 840 N.E.2d 135 [2005] ).   In the challenged determination, respondent Water Board included the surcharge in calculating petitioner's wastewater charge.   Although the then applicable rate schedule simply provided that “[t]he wastewater charge for any property supplied with water from the Water Supply is one hundred fifty-nine percent (159%) of the charges for water supplied to that property from the system” without express mention of the surcharge as one of the “charges,” respondent's inclusion of the surcharge as a water charge for the purpose of calculating the wastewater charge cannot be characterized as irrational and, accordingly, may not be judicially disturbed (see Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528 [1971] ).   Respondent not only administers, but promulgated the rate schedule at issue, and thus its interpretation of that schedule is entitled to particular deference (see Matter of Tommy & Tina, Inc. v. Department of Consumer Affairs of City of N.Y., 95 A.D.2d 724, 464 N.Y.S.2d 132 [1983], affd. 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988 [1984];  see also Matter of Nelson v. Roberts, 304 A.D.2d 20, 24, 757 N.Y.S.2d 41 [2003] ).   We note, in any case, that one purpose of the surcharge at issue is to compensate for the relative undercharge of water consumers whose bills are calculated on the basis of frontage, as opposed to actual metered usage (see Matter of 77 Realty, LLC, supra ), and, accordingly, that it is entirely rational to include the surcharge as a water charge.