Press v. Monroe County

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: JONES; JASEN; COOKE, C. J., and GABRIELLI, WACHTLER, FUCHSBERG and MEYER, JJ., concur with JONES; JASEN
• Citation: Press v. Monroe County, 431 N.Y.S.2d 394, 50 N.Y.2d 695 (N.Y. 1980)
• Decision Date: 01 July 1980
• Parties: , 409 N.E.2d 870 Elliott H. PRESS et al., Appellants, v. COUNTY OF MONROE et al., Respondents.

Page 394

431 N.Y.S.2d 394

50 N.Y.2d 695, 409 N.E.2d 870

Elliott H. PRESS et al., Appellants, v. COUNTY OF MONROE et al., Respondents.

Court of Appeals of New York.

July 1, 1980.

Warren B. Rosenbaum, Rochester, for appellants.

John D. Doyle, County Atty. (William D. Sheldon, III, and Sergeant W. Wise, Rochester, of counsel), for respondents.

OPINION OF THE COURT

JONES, Judge.

An action for a judgment declaring invalid the assessment rolls of a sewer district as affirmed and adopted by the county legislature pursuant to section 271 of the County Law on the ground that the underlying rate schedule was unconstitutional is time-barred unless instituted within four months after such affirmation and adoption.

Plaintiffs are the owners of property improved with garden apartments known as "Poplar Gardens Apartments", located in the Town of Gates, Monroe County, within the boundaries of defendant Gates-Chili-Ogden Sewer District. In the preparation of the assessment roll for the sewer district for the year 1973, pursuant to section 271 of the County Law, the administrative board of the sewer district on August 16, 1972 adopted a proposed amended rate schedule which imposed a flat dollar charge per unit on structures containing one, two or three dwelling units but classified apartment, duplex and townhouse complexes (which included any structure or series of structures located within a single lot or tax account number containing four or more dwelling units) differently. As to such apartment complexes, the number of units assigned for computation of the sewer assessment was initially determined on the basis of assigning a half unit to an efficiency (studio and one bedroom), three quarters of a unit to a two-bedroom apartment, and a full unit to a three-bedroom apartment. The sewer assessment was then computed by multiplying the number of assigned units so determined by the flat dollar charge, unless the particular apartment complex consumed a total of more than 60,000 gallons per such unit per fiscal year, in which event the particular complex would be charged on the basis of water actually consumed, i. e., the number of units would be determined by dividing the gallons of water consumed by 60,000, and the number of such units would then be multiplied by the flat dollar rate.

In determining the 1973 sewer assessment on plaintiffs' property the sewer board converted the 135 garden apartments to 113 assigned units, which, multiplied by the flat dollar rate for that year, produced a proposed sewer assessment of $11,092. The sewer district assessment roll containing this figure was filed with the Monroe County Legislature on September 6, 1972, and after a public hearing on September 30, 1972 was affirmed and adopted by the county legislature on October 11, 1972 in conformity with section 271 of the County Law.

In 1974 the administrative board of the sewer district, employing the same rate schedule with a revised flat dollar charge, prepared the assessment roll for 1975. Inasmuch, however, as the water consumption on plaintiffs' property had exceeded the critical figure, the assessment this time was based on 9.6 million gallons of water consumed, which was divided by 60,000 to arrive at a sewer assessment based on 160 units, resulting in a tax levy of $20,001. The 1975 assessment roll with this figure was filed with the county legislature on September 12, 1974 and after a public hearing was affirmed and adopted by it on October 22, 1974.

The following year, in similar fashion, the administrative board of the sewer district prepared the assessment roll for 1976. Plaintiffs' assessment was again based on water actually consumed, this time 8.38 million gallons, which was divided by 60,000 gallons to arrive at 140 units producing a tax levy of $17,501. The 1976 assessment roll including this figure was filed with the county legislature on September 16, 1975, which after a public hearing on October 4, 1975 affirmed and approved the roll as filed on October 7, 1975.

On June 28, 1978 plaintiffs commenced the present action for a declaration that the 1973, 1975 and 1976 assessment rolls were void by reason of the unconstitutionality of the underlying rate schedule which treated apartment complexes differently from other dwelling units within the sewer district. Respondents moved to dismiss the complaint under CPLR 3211 (subd. (a), par. 5) on the ground that the action was barred by the applicable Statute of Limitations, which they asserted was four months (CPLR 217) inasmuch as the challenged determinations could have been reviewed in a CPLR article 78 proceeding.

Special Term denied the motion to dismiss, treated it as a motion for summary judgment and, pursuant to CPLR 3211 (subd. (c)) ordered an immediate trial on the issue of asserted unconstitutionality of the underlying rate classification. The Appellate Division reversed and dismissed the action on the ground that it was not commenced within four months after the adoption of the assessment rolls for the three years in question. There should be an affirmance.

The disposition of the appeal in this case turns on the identification of the Statute of Limitations that is applicable to this declaratory judgment action. We agree that it is the four-months statute of CPLR 217 and accordingly, that this action was properly dismissed as time-barred.

As we have recently stated in Solnick v. Whalen 49 N.Y.2d 224, 229-230, 425 N.Y.S.2d 68, 71, 401 N.E.2d 190, 193: "In order to determine therefore whether there is in fact a limitation prescribed by law for a particular declaratory judgment action it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought * * * If that examination reveals that the rights of the parties sought to be stabilized in the action for declaratory relief are, or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action. In that event there is a limitation specifically prescribed by law and the catch-all provision of CPLR 213 (subd. 1) is not applicable. If the period for invoking the other procedural vehicle for relief has expired before the institution of the action for declaratory relief, the latter action also is barred."

In this case, as in Solnick, the controversy between these parties could and, as the Appellate Division noted, should more properly have been resolved in a proceeding instituted under CPLR article 78 to review each determination of the county legislature when it affirmed and approved the assessment roll of the sewer district for each particular year. The circumstance that the action sought to be reviewed is that of a legislative body, here the Monroe County Legislature, does not stamp that action as "legislative" for purposes of determining whether challenges to the constitutionality of its action may be raised by means of an article 78 proceeding or whether recourse must necessarily be had for such purpose to an action for a declaratory judgment.

It is to be observed that we have had frequent occasion to state that an article 78 proceeding is not the proper vehicle to challenge the constitutionality of legislative enactments. In most of the cases the application of this principle has been of no practical significance inasmuch as the courts, in reliance on CPLR 103 (subd. (c)) have promptly remedied any procedural infirmity by converting the article 78 proceeding to a declaratory judgment action or other appropriate proceeding and thereupon marched on to the merits. (E. g., Matter of Ames Volkswagen v. State Tax Comm., 47 N.Y.2d 345, 348, 418 N.Y.S. 324, 391 N.E.2d 1302 (article 78 challenge to constitutionality of Tax Law, § 1137-A, converted to declaratory judgment action); New York Public Interest Research Group v. Steingut, 40 N.Y.2d 250, 254, 386 N.Y.S.2d 646, 353 N.E.2d 558 (article 78 challenge to constitutionality of chapter 460 of the Laws of 1975 converted to declaratory judgment action); Matter of Friedman v. Cuomo, 39 N.Y.2d 81, 83, 382 N.Y.S.2d 961, 346 N.E.2d 799 (article 78 proceeding challenging constitutionality of chapters 29 and 30 of the Laws of 1976 converted to special proceeding under Election Law, § 330); Matter of Merced v. Fisher, 38 N.Y.2d 557, 559, 381 N.Y.S.2d 817, 345 N.E.2d 288 (article 78 proceeding challenging constitutionality of Vehicle and Traffic Law, § 332, converted to declaratory judgment action); Boryszewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623, 334 N.E.2d 579 (article 78 challenge to Retirement and Social Security Law, § 80-a, converted to declaratory judgment action); Matter of DuBois v. Town Bd. of Town of New Paltz, 35 N.Y.2d 617, 621, 364 N.Y.S.2d 506, 324 N.E.2d 153 (article 78 proceeding challenging constitutionality of Highway Law, § 277, converted to declaratory judgment action); Matter of Kovarsky v. Housing & Dev. Admin. of City of N.Y., 31 N.Y.2d 184, 191-193, 335 N.Y.S.2d 383, 286 N.E.2d 882 (article 78 proceeding challenging constitutionality of New York City Administrative Code, § YY51-6.0, subd. c, par. (9), cl. (a), converted to declaratory judgment action); Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 476, 329 N.Y.S.2d 805, 280 N.E.2d 640 (article 78 proceeding challenging constitutionality of Real Property Law, § 441-c, converted to declaratory judgment action); cf. Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 406-409, 301 N.Y.S.2d 1, 248 N.E.2d 855 (article 78 proceeding challenging general rate-fixing order of administrative agency as "excessive, arbitrary and capricious" converted to declaratory judgment action)). In one instance the court proceeded to consider the merits of a constitutional challenge to chapter 1012 of the Laws of 1971 without stopping to convert the article 78 proceeding to a...