Opinion
004197/16
10-14-2016
In the Matter of the Application of A-Z Transit Contracting Corp., Petitioner, v. Port Washington Water District, Respondent.
Fredrick P. Stern, P.C. Attorneys for the Petitioner 2163 Sunrise Highway Islip, NY 11751 Ph: (631) 650-9260 Fax: (631) 650-9259 Bee Ready Fishbein Hatter & Donovan, LLP Attorneys for the Respondent 170 Old County Road, Suite 200 Mineola, NY 11501 Ph: (516) 746-5599 Fax: (516) 746-1045
Fredrick P. Stern, P.C. Attorneys for the Petitioner 2163 Sunrise Highway Islip, NY 11751 Ph: (631) 650-9260 Fax: (631) 650-9259 Bee Ready Fishbein Hatter & Donovan, LLP Attorneys for the Respondent 170 Old County Road, Suite 200 Mineola, NY 11501 Ph: (516) 746-5599 Fax: (516) 746-1045 Randy Sue Marber, J.
This Petition, brought pursuant to Article 78 of the CPLR, seeking an Order: a) compelling the Respondent, PORT WASHINGTON WATER DISTRICT (hereinafter "PWWD"), to provide water service by hooking up water to the existing main; b) compelling the Respondent, PWWD, to comply with the Petitioner, A-Z TRANSIT CONTRACTING CORP.'s (hereinafter "A-Z"), Freedom of Information request; and c) determining that the within action is a mandamus to compel, is determined as provided herein.
David Ferdinand (hereinafter "Ferdinand") is presently the owner and President of the Petitioner, A-Z. (See Verified Petition at p. 1). Mr. Ferdinand alleges that A-Z was contracted to renovate a home, owned by Trevor Burton and Emily Burton (hereinafter referred to collectively as the "property owners"), located on Bonnie Heights Road in the Village of Flower Hill, County of Nassau, State of New York (hereinafter the "subject property"). Thereafter, A-Z obtained a Demolition Permit for the home at the subject property to be demolished and a Building Permit for a new house to be constructed on the premises. (See Demolition and Building Permits attached to the Petitioner's Verified Petition as Exhibit "A") Mr. Ferdinand alleges that, in April of 2015, at the request of the Petitioner, A-Z, the Respondent, PWWD, shut off the water supply and removed the water meter at the subject property. (Id. at p. 2)
Mr. Ferdinand states that, once the new home was almost fully constructed on the subject property, he contacted the Respondent, PWWD, on behalf of the Petitioner, A-Z, requested that the water supply be turned back on, and that a new water meter be placed in the new home. (Id. at p. 2) Mr. Ferdinand alleges that the Respondent, PWWD, refused to connect the new home to the existing water main and required that the current water main be extended and "re-sleeved" through means requiring construction across from the subject location.
As a result of the foregoing, the within proceeding was commenced by the Petitioner, A-Z, which requests the various forms of relief as are recited herein above. In support thereof, the central contention posited by the Petitioner, A-Z, is that the Respondent, PWWD, arbitrarily denied water service at the subject property by requiring that a new water main be constructed. The Petitioner argues that it is being estopped from collecting final payment under its contract with the property owners as a result of the Respondent, PWWD's, conditions on providing water service to the new home.
The Petitioner, A-Z, further contends that the Respondent, PWWD's, requirement that a new water main be constructed before water service is supplied to the new home is violative of the Equal Protection Clause of the United States Constitution. The Petitioner, A-Z, submits that the Respondent, PWWD, has not required the same from other homeowners in the Village of Flower Hill. Based on this contention, the Petitioner, A-Z, filed a Freedom of Information Request with the Respondent, PWWD, for information regarding "all hook ups and meter costs in the Village in the last two years and the final cost to the homeowner." The Petitioner, A-Z, argues that the Respondent, PWWD, refused to provide a response. As such, the Petitioner submits that the Respondent, PWWD, is in violation of the Freedom of Information Act.
In the Verified Answer and Objections in Point of Law, counsel for the Respondent, PWWD, contends that the Petitioner, A-Z, lacks standing to maintain the within proceeding, as it has failed to allege an injury in fact. Counsel for the Respondent, PWWD, submits that since the Petitioner, A-Z, is merely a general contractor, and not the owner of the subject property, the Petitioner, A-Z, lacks standing to challenge the conditions required by the Respondent, PWWD.
Counsel for the Respondent, PWWD, points out that the Petitioner, A-Z, alleges that it is unable to complete performance under its contract with the property owners. Counsel argues that, since the Respondent, PWWD, is not a party to that contract, the Respondent, PWWD, has no legal obligation to the Petitioner, A-Z. Further, counsel for the Respondent, PWWD, argues that the Petitioner, A-Z, failed to join necessary parties to this action. The Petitioner, A-Z, failed join the property owners and makes no mention as to what authority it has to assert a property right of the property owners on the property owners' behalf.
This Court notes that on August 8, 2016, the Petitioner attempted to submit a Sur-Reply in the form of a letter containing Nondurable General Power of Attorney. Since the within Petition was fully submitted on August 1, 2016, this Court will not consider the Sur-Reply offered by the Petitioner. Moreover, the Power of Attorney proffered by the Petitioner does not include Emily Burton, one of the property owners, and therefore, is insufficient. --------
Counsel contends that, irrespective of the Petitioner, A-Z's, lack of standing, the actions undertaken by the Respondent, PWWD, were neither arbitrary or capricious, thus warranting dismissal of the within Petition. Counsel highlights that, pursuant to Town Law § 215(2) and Nassau County Civil Divisions Act § 255.4(h), the Respondent, PWWD, has promulgated Ordinances, Rules, and Regulations regarding "how water connections shall be made" and "the operation of the water district and use of water therein, including but not limited to the regulation of cross-connections, the operation, manner of construction, alteration, removal and inspection of the water mains, lateral mains, and water service mains, the plumbing in all existing and proposed buildings and structures, the manner in which connection shall be made to the water mains, lateral mains, and water service mains..."
The Respondent, PWWD, notes that, in accordance with its Ordinances, Rules, and Regulations, it requires certain steps to be taken when demolishing and constructing a new home. Pursuant to § 12 of the PWWD Ordinances, Rules, and Regulations, once construction of the new home is almost complete, the property owner must file an "Application for Water Supply" (hereinafter the "Application"). (See a copy of the Application attached to the Respondent's Verified Answer as Exhibit "C") Counsel for the Respondent highlights that the Application specifically notes the requirement that all new service lines be at least 1 inch in diameter. (Id.)
Moreover, counsel rejects the Petitioner, A-Z's, argument that the Respondent, PWWD, is in violation of the Freedom of Information Act. Counsel for the Respondent, PWWD, references Public Officers Law § 89 (a) (3) which provides that, "each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied." Counsel submits that the Respondent, PWWD, timely responded to the Petitioner, A-Z's, Freedom of Information Request in compliance with Public Officers Law § 89 (a) (3). On May 6, 2016, the Respondent, PWWD, mailed a letter to Mr. Ferdinand, acknowledging receipt of the Freedom of Information Request and indicating a time frame within which the Respondent, PWWD, would provide a response. (See a copy of the letter attached to the Respondent's Verified Answer as Exhibit "E") Thereafter, on May 20, 2016, the Respondent, PWWD, sent its determination to the Freedom of Information Request from Mr. Ferdinand. (See a copy of the letter attached to the Respondent's Verified Answer as Exhibit "F") The determination letter indicated that Mr. Ferdinand had the right to appeal the Respondent, PWWD's, decision. Counsel for the Respondent argues that, despite being advised of its right to do so, the Petitioner, A-Z, has failed to appeal the partial denial. Therefore, counsel for the Respondent, PWWD, contends that the branch of the Petitioner, A-Z's, action based on the Freedom of Information Act should be dismissed, as the Petitioner, A-Z, failed to exhaust administrative remedies.
In consideration that standing is a threshold matter, where the absence of which is an inviolable impediment to bringing an action or proceeding, the Court will initially address whether the Petitioner possesses the requisite standing to maintain the within proceeding (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 [1991]; Gilman v. Abagnale, 235 AD2d 989 [3d Dept. 1997]) In order to establish standing, it is incumbent upon a plaintiff or petitioner to demonstrate an "injury in fact" in that he or she will actually suffer harm from the challenged action. (New York State Association of Nurse Anesthetists v. Novello, 2 NY3d 207 [2004]). "The existence of injury in fact, an actual legal stake in the matter being adjudicated, ensures that the party seeking relief has some concrete interest in prosecuting the action which casts the dispute in a form traditionally capable of judicial resolution'" (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 [1991], supra quoting Schlesinger v. Reservists Committee to Stop the War, 418 US 208 [1974]) The injury alleged by a plaintiff or petitioner must be more than "conjectural" in nature and it is necessary for a petitioner to demonstrate that the injury asserted must fall within his or her "zone of interests" (Id.; See also Silver v. Pataki, 96 NY2d 532 [2001])
In the instant matter, this Court finds that the Petitioner, A-Z, lacks standing to maintain the within proceeding. The Petitioner, A-Z, possesses no property right or interest in the subject property and has no authority to act on behalf of the property owners. Further, the Petitioner, A-Z, has not alleged an injury that it has suffered to date. As the Petitioner, A-Z, points out, its alleged injury is one that has the potential to occur and is based upon contract theory. The Petitioner, A-Z, entered into a contract with the property owners to demolish and build a new home on the subject property. The Respondent, PWWD, is not a party to such contract. Therefore, any issues regarding contract enforcement or breach of contract must be resolved in an action between the Petitioner, A-Z, and the property owners. Lastly, the Respondent, PWWD, proffered sufficient evidence to establish that the Petitioner, A-Z, has failed to exhaust its administrative remedies with respect to the Respondent's determination of the Petitioner, A-Z's, Freedom of Information request.
Accordingly, the instant Petition by the Petitioner, A-Z TRANSIT CONTRACTING CORP., is hereby DENIED, and the action is DISMISSED.
The foregoing constitutes the decision and order of the Court. Dated: October 14, 2016 Mineola, New York HON. RANDY SUE MARBER, J.S.C.