A&F Scaccia Realty Corp. v. N.Y.C. Dep't of Envtl. Prot.

• Decision Date: 15 December 2021
• Docket Number: 2019–05313,Index No. 715482/18
• Citation: 200 A.D.3d 875,161 N.Y.S.3d 108
• Parties: In the Matter of A&F SCACCIA REALTY CORP., respondent, v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., appellants.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 875

161 N.Y.S.3d 108

In the Matter of A&F SCACCIA REALTY CORP., respondent,

v.NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., appellants.

2019–05313

Index No. 715482/18

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

Argued—October 29, 2021

December 15, 2021

Georgia M. Pestana, Corporation Counsel, New York, NY (Scott Shorr and Tahirih M. Sadrieh of counsel), for appellants.

Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY, for respondent.

WILLIAM F. MASTRO, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Water Board dated June 12, 2018, which affirmed a billing determination of the New York City Department of Environmental Protection dated February 6, 2018, against the petitioner, the New York City Department of Environmental Protection and City of New York appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 6, 2019. The order denied the motion of the New York City Department of Environmental Protection and City of New York to vacate a judgment of the same court entered December 7, 2018, inter alia, granting the petition and annulling the determination of the New York City Water Board.

ORDERED that the order is reversed, on the law, with costs, the motion of the New York City Department of Environmental Protection and City of New York to vacate the judgment entered December 7, 2018, is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The petitioner, A&F Scaccia Realty Corp. (hereinafter A&F), is the owner of real property in Queens which is used as a concrete manufacturing plant. After receiving a bill in excess of $88,000 for water and sewer charges, A&F applied for an exception to the standard wastewater allowance, contending that all water used on the property was absorbed in the concrete manufacturing process and no water was discharged into the New York City wastewater sewer system. In a determination dated February 6, 2018, the New York City Department of Environmental Protection (hereinafter the DEP) refused to approve A&F's application while there were delinquent charges on the account, further noting that exceptions to the standard wastewater allowance are only prospectively applied.

A&F continued to challenge the charges, culminating in an appeal which was denied by the New York City Water Board (hereinafter the Water Board) by letter determination dated June 12, 2018, reciting that all properties are required to connect to the sewer system if available, and property owners are required to pay for sewer services even if the sewer system is not being used for sanitary discharge. Furthermore, the Water Board determined that it is the property owner's responsibility to request a rate reduction or elimination by applying for a standard wastewater allowance or an exception thereto, which must be renewed every two years. The Water Board further observed that in this case, there had been no such application since 2007, that allowances are granted prospectively only, and that applications therefor will not be approved if there are delinquent charges on the account.

A&F commenced this proceeding pursuant to CPLR article 78 against the DEP and the City of New York (hereinafter together the appellants) to review the Water Board's June 12, 2018 determination. The proceeding was unopposed, and by judgment entered December 7, 2018, the Supreme Court, inter alia, granted the petition, annulled the Water Board's June 12, 2018 determination, and directed the Water Board and the appellants to remove all sewer charges in relation to the subject property.

The appellants subsequently moved pursuant to CPLR 5015(a)(1) to vacate the judgment. Characterizing the motion as one for reargument or renewal, the Supreme Court, in an order entered March 6, 2019, denied the motion.

As a preliminary matter, a court may, at any stage of a case and on its own motion, determine whether there has been a failure to join necessary parties (see Matter of Lezette v. Board of Educ., Hudson City School Dist., 35 N.Y.2d 272, 282, 360 N.Y.S.2d 869, 319 N.E.2d 189 ). Nonjoinder of necessary parties may also be raised for the first time on appeal (see Miller v. Wendy Joan St. Wecker Trust U/A Aug. 28, 1997, 173 A.D.3d 1007, 1009, 104 N.Y.S.3d 659 ).

Here, the appellants correctly contend that the Water Board should be joined as a necessary party to this proceeding. "Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" ( CPLR 1001[a] ). In a proceeding pursuant to CPLR article 78, the governmental agency which performed the challenged action must be a named party (see Matter of Centeno v. City of New York, 115 A.D.3d 537, 981 N.Y.S.2d 923 ; Matter of Solid Waste Servs., Inc. v. New York City Dept. of Envtl. Protection, 29 A.D.3d 318, 814 N.Y.S.2d 151 ; Matter of Emmett v. Town of Edmeston, 3 A.D.3d 816, 818, 771 N.Y.S.2d 568, affd 2 N.Y.3d 817, 781 N.Y.S.2d 260, 814 N.E.2d 430 ). Since the instant petition challenged the Water Board's June 12, 2018 final determination, and the Water Board is the entity which promulgates the rate schedule of sewer rents and wastewater allowances (see Public Authorities Law § 1045–g[4] ) in the discharge of its duties to fix and collect water and sewer charges in order for the City to maintain the water system (see Giuliani v. Hevesi, 90 N.Y.2d 27, 34, 659 N.Y.S.2d 159, 681 N.E.2d 326 ), the Water Board was a necessary party to this proceeding. Indeed, the Water Board would be prejudiced by the judgment purporting to bind its rights when it had no opportunity to be heard (see City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399...