International Paper Co. v. Sterling Forest Pollution Control Corp.
Decision Date | 31 December 1984 |
Citation | 105 A.D.2d 278,482 N.Y.S.2d 827 |
Parties | INTERNATIONAL PAPER COMPANY, Appellant, v. STERLING FOREST POLLUTION CONTROL CORP., et al., Respondents, et al., Defendant. |
Court | New York Supreme Court — Appellate Division |
Fabricant, Lipman & Stern, Goshen (Mark D. Stern, Antonio T. Lucia, Goshen, and Walt T. Zielinski, of counsel), for appellant.
Arthur Moskoff, New City, for respondent Town of Tuxedo.
Ritter & Hankin, Poughkeepsie (Joel D. Hanig, Poughkeepsie, of counsel), for respondent Sterling Forest Pollution Control Corp.
Before MOLLEN, P.J., and TITONE, BRACKEN and RUBIN, JJ.
In this action, the plaintiff International Paper Company, inter alia, sought a judgment, pursuant to section 121 of the Transportation Corporations Law, declaring invalid a stipulation of settlement between the defendant Sterling Forest Pollution Control Corp. (SFPCC) and the defendant Town of Tuxedo (the Town), which stipulation set the sewerage rates to be charged to the plaintiff by SFPCC, and, further, declaring invalid the Town's resolution approving the stipulation. The Supreme Court dismissed the complaint on the ground that the action was barred by the four-month Statute of Limitations set forth in CPLR 217. We affirm.
The plaintiff, a domestic corporation, operates a facility which daily discharges more than 30,000 gallons of waste. SFPCC is a sewage-works corporation (see Transportation Corporations Law, § 115, subd. 1), that operates the Indian Kill sewer system, which services 148 residents as well as three industrial users, namely: the plaintiff, and codefendants Union Carbide Corporation and Reichold Chemical, Inc.
In January, 1967, the plaintiff and SFPCC entered into a contract in which SFPCC agreed to treat and dispose of the plaintiff's sewerage at a specified rate. This agreement expired on or about January 1, 1979.
Pursuant to section 121, SFPCC petitioned the Town in or about November, 1978, for an increase in the residential sewerage rate. According to the plaintiff, the petition did not include a request for an increase in the plaintiff's rates; SFPCC's position, however, was that it submitted a separate petition to the Town in the form of a letter dated June 18, 1979, requesting such a rate increase. The Town conducted public hearings in March, May, June and July, 1979, although SFPCC contends such hearings were not statutorily mandated. Based upon its findings of fact, the Town denied SFPCC's requested increase in sewer rates, both as to the plaintiff and the residential users, and ordered lower rates.
In, or about, January, 1980, SFPCC commenced a proceeding pursuant to CPLR article 78 to review the Town's determination, which proceeding was converted into a declaratory judgment action. The action was subsequently settled by stipulation of settlement, and amendment to the stipulation, entered into by the Town and SFPCC, both of which were incorporated into the court's settlement order dated November 17, 1981. The stipulation set the sewer rates to be charged to the plaintiff and residential users, for a period covering 1982, 1983 and 1984, commencing each year on January 1. The plaintiff was not a party to the declaratory judgment action or the settlement though, according to SFPCC, the plaintiff was aware of and was invited to join in the action. On September 28, 1981, the Town Board by resolution approved the settlement and the plaintiff's attorneys were notified of the approval.
The plaintiff commenced this action by the service of a summons, dated July 7, 1982, and complaint, seeking, inter alia, a judgment declaring that the stipulation of settlement, as amended, and the resolution approving the settlement, are violative of section 121 of the Transportation Corporations Law, and therefore, null and void. Also sought was a judgment directing that "fair, reasonable and adequate rates" be set in accordance with section 121. The Town moved and SFPCC cross-moved, pursuant to CPLR 3211 and 3212, for orders dismissing the complaint on the ground that the action was barred by the Statute of Limitations. Special Term granted the motions, finding that "the action was commenced * * * more than four months after the cause of action for an article 78 proceeding accrued."
On this appeal, the plaintiff in essence argues that inasmuch as the sewerage rates in question were set pursuant to section 121 of the Transportation Corporations Law, which does not provide for public hearings, the action taken in setting those rates, viz., the stipulation of settlement and resolution approving the stipulation, should be deemed "legislative" rather than "administrative" action. As such, the appropriate method of challenging the action taken is a declaratory judgment action, governed by the six-year time limitation set forth in CPLR 213.
Action which is legislative in nature is reviewable in a declaratory judgment action ( Matter of Lakeland Water Dist. v. Onondaga County Water Auth., supra, pp. 408-409, 301 N.Y.S.2d 1, 248 N.E.2d 855).
Subsequent to Lakeland Water Dist. (supra ), the Court of Appeals seemingly reached a contrary result in Solnick v. Whalen, 49 N.Y.2d 224, 425 N.Y.S.2d 68, 401 N.E.2d 190. The plaintiffs in Solnick (supra ) ( ), commenced a declaratory judgment action to challenge the downward revision of their reimbursement rates under the Federal Medicaid program (U.S.Code, tit. 42, § 1396 et seq.), administered by the New York State Department of Social Services. The determination was made pursuant to statute which did not require a predetermination hearing (see Solnick v. Whalen, supra; see, also, Matter of Broadacres Skilled Nursing Facility v. Ingraham, 51 A.D.2d 243, 381 N.Y.S.2d 131). Nevertheless, the Court of Appeals concluded that the action challenged by the plaintiffs was properly reviewable by a CPLR article 78 proceeding and that the proceeding was governed by the four-month limitation period provided by CPLR 217 for proceedings against a body or officer.
...
To continue reading
Request your trial-
RR Village Ass'n, Inc. v. Denver Sewer Corp.
... ... I do not consider the dictum in International ... Page 1208 ... Paper Co. v. Sterling t Pollution Control Corp., 105 A.D.2d 278, 283, 482 N.Y.S.2d ... ...
-
Save Harrison, Inc. v. Town/Vill. of Harrison, 2017–02349
...article 78, such as the Town's execution of the December 2014 settlement agreement (see International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278, 282, 482 N.Y.S.2d 827 ). Accordingly, we agree with the Supreme Court's determination granting those branches of the re......
-
Ernalex Const. Realty Corp. v. City of Glen Cove
...judgment action (see, Janiak v. Town of Greenville, 203 A.D.2d 329, 331, 610 N.Y.S.2d 286; International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278, 482 N.Y.S.2d 827). The Supreme Court therefore erroneously determined that the second cause of action was untimely (......
-
South Liberty Partners, L.P. v. Town of Haverstraw
...( see Press v. County of Monroe, 50 N.Y.2d at 703-704, 431 N.Y.S.2d 394, 409 N.E.2d 870; International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278, 282-283, 482 N.Y.S.2d 827). Accordingly, the claims challenging these administrative actions are time-barred, as those......