Middle Atlantic Utilities Co. v. SMW Development Corp.

• Decision Date: 06 April 1965
• Citation: 240 F. Supp. 272
• Parties: MIDDLE ATLANTIC UTILITIES CO., Plaintiff, v. S.M.W. DEVELOPMENT CORP., Sullivan County Land & Development Corp. and J. Ballay & Co., Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

240 F. Supp. 272

MIDDLE ATLANTIC UTILITIES CO., Plaintiff, v. S.M.W. DEVELOPMENT CORP., Sullivan County Land & Development Corp. and J. Ballay & Co., Inc., Defendants.

United States District Court S. D. New York.

April 6, 1965.

Levin & Weissman, New York City, for plaintiff.

Stroock & Stroock & Lavan, New York City, for defendant S.M.W. Development Corp.

William H. Arkin, New York City, for defendant J. Ballay & Co., Inc.

BONSAL, District Judge.

Plaintiff, Middle Atlantic Utilities Co., as "assignee" of Rock Hill Sewerage Disposal Corp. (Rock Hill), has instituted this action against S.M.W. Development Corp. and J. Ballay & Co., Inc., seeking to collect sewer rates alleged to be due to Rock Hill on building plots owned by the defendants, pursuant to a resolution adopted by the Town Board of the Town of Thompson, Sullivan County, New York, on or about October 22, 1960. Plaintiff moves for summary judgment and for the striking of the answer of the defendant J. Ballay & Co., Inc.; and the defendant S.M.W. Development Corp. moves for summary judgment dismissing the complaint against it. The resolution of the Town Board of the Town of Thompson provides as follows:

"WHEREAS, the Town Board of the Town of Thompson has previously formed a Sewer District covering a development known as the Lake Louise Marie Development, and

"WHEREAS, since that time, the said sewer system and sewer plant have been completed in accordance with plans and specifications previously approved by the New York State Board of Health, and

"WHEREAS, since the formation of the aforesaid Sewer District, the Laws of the State of New York have been amended to provide for the ownership in operation of sewer systems by private corporations pursuant to Chapter 1067 of the Laws of 1960, and

"WHEREAS, a Petition has been presented to the Town Board of the Town of Thompson requesting the consent of the Town to the formation of a private sewer corporation to be known as the Rock Hill Sewerage Disposal Corporation and also that the Town of Thompson approve an annual sewerage charge of $60.00 for each building plot, and further requesting that in the event of the establishment of a legally constituted private sewer corporation, that the Town of Thompson dissolve the Sewer District previously formed.

"NOW, THEREFORE, BE IT RESOLVED:

"1. That the Town of Thompson does hereby consent to the formation of a private sewer corporation to be known and owned under the name of Rock Hill Sewerage Disposal Corporation.

"2. That the Town of Thompson consent that the corporation may charge $60.00 per year for each building plot and determines that said charge would be fair and reasonable.

"3. That the consent herein shall be subject to the approval of the New York State Board of Health and shall also be consistent in all respects with Chapter 1067 of the Laws of 1960 of the State of New York.

"4. When all of the conditions and approvals herein required are complied with, the Town Board of the Town of Thompson hereby determines to dissolve the Sewer District heretofore formed for the area known as Lake Louise Marie."

The issues here presented are whether the annual rate of $60 per year for each building plot applies to all unimproved plots or whether it applies only to those plots which are connected with the sewer system, and, if the former, whether the resolution is valid under the enabling legislation, Chapter 1067 of the New York Laws of 1960 (N.Y. Transportation Corporations Law, Art. 10, § 115 et seq.). Plaintiff urges that it is clear that the resolution applies to all building plots, whether or not connected, and the defendants urge with equal conviction that the resolution applies only to building plots which are connected to the Rock Hill sewerage facilities.

To assist the Court in this peculiarly local problem, the parties discuss, in their briefs, the policy of the State of New York with regard to water pollution and the organization of sewer corporations, and each cites various opinions of the Comptroller of New York which they believe...