Matter of Home Depot U.S.A., Inc v Town Board of the Town of Southeast
In this consolidated Article 78 appeal, petitioners sought to compel the Town Board of the Town of Southeast and the Town of Southeast (thereinafter together the Town) to review the sewage rates of Independent Sewage Works, Inc., (ISW). The Supreme Court denied the Town’s motion to dismiss the consolidated proceeding and granted the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the sewage rates due to the five year lapse of time since the last review.
Petitioners filed a complaint to compel the Town to review and reduce the rates IS was charging them in June of 2005. When the Town failed to take action, petitioners commenced an Article 78 appeal since the Town was required to review the rates every five years. The Town and ISW moved to dismiss the proceeding and the petitioners cross-moved for summary judgment. The Supreme Court denied the motion and granted the cross motion directing the Town to review the sewage rated being charged by ISW.
The Court finds that the Supreme Court should have dismissed the parts of the consolidated proceeding seeking to compel the Town to consider the issues raised in the complaint due to missing the four month statute of limitations and failing to demonstrated a clear legal right under Transportation Law § 121. The Supreme Court was, however, correct in granting the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the rates charged by ISW since five years had passed since the last review. The petitioners were timely in filing this appeal and established a clear legal right to compel the Town to review the sewage rates.
Accordingly, the Supreme Court modified the order and judgment by deleting the provision denying the branch of the motion to dismiss the consolidated proceeding to compel the Town Board and Town to consider the issues raised in petitioners’ administrative complaint and substituting a provision granting that branch of the motion.
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