Opinion
SC 107-11.
Decided July 1, 2011.
Scott Clark, Plaintiff, pro se, Schenectady, NY.
Rebekah Nellis Kennedy, Esq., Attorney for Defendant, Town Attorney's Office, Town of Colonie, Newtonville, NY.
Plaintiff commenced this small claims action seeking $4,800.00 for attorneys fees, mortgage modification fees, and bank attorney fees incurred after plaintiff's residential mortgage went into foreclosure allegedly due to defendant overcharging plaintiff for water usage. In a Notice of Motion filed April 21, 2011, defendant, through attorney Rebekah Nellis Kennedy, Esq., moved to dismiss the claim pursuant to CPLR § 3211, CPLR § 214, CPLR § 7804, and General Municipal Law § 50-e. Plaintiff filed a response to the motion to dismiss on May 3, 2011. The Court renders the following findings of fact and decision on the motion.
The relevant facts are not in dispute. From 1996 through 2009, defendant did not gain access to plaintiff's water meter and therefore had to estimate plaintiff's water usage. Plaintiff was billed in accordance with this estimated usage and failed to pay those bills, which resulted in the amount due being levied on to his property tax bill. According to defendant's affidavit, when plaintiff ultimately appeared at Town Hall to dispute the water usage bill in 2009, he stated that he did not open his monthly water and mortgage bills, but merely continued to pay his mortgage company what he had been originally told to pay. Plaintiff does not dispute this allegation in his response papers herein. Plaintiff also does not dispute that he advised defendant his mortgage went into foreclosure because he had been unknowingly underpaying his mortgage escrow amount, which included the subject water usage charges that had been levied on to his tax bill. While plaintiff disputes defendant's contention that defendant's representatives visited his home over 22 times to attempt to gain entry into his home to read his water meter, he does not dispute the fact that the water meter was never read during the time period at issue.
The Court notes that the inability of defendant to gain access to plaintiff's water meter, and the resulting necessity of estimating plaintiff's water usage, took place over a 13 year period. A meter reader employed by defendant eventually gained access to the meter in question and made a determination that the water usage charges had been overestimated and that plaintiff had therefore been overcharged for such usage. Pursuant to an October 7, 2010 Colonie Town Board resolution, plaintiff was ultimately reimbursed for being overcharged in the amount of $4,626.58.
Defendant moves to dismiss on the grounds that, among other things, this action should have been brought as a CPLR Article 78 proceeding in Supreme Court and commenced within the required four month statute of limitations period. Pursuant to CPLR § 7803 governing Article 78 proceedings:" The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
5. a proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision."
It is undisputed that a CPLR Article 78 proceeding is the appropriate vehicle for seeking judicial review of administrative implementation of legislatively imposed duties. Renley Development Company v. Town Board of the Town of Kirkwood, 106 AD2d 717 (Third Dept., 1984). Defendant argues that plaintiff is effectively challenging the validity of the subject water bills that were issued to him and the subsequent levy of those unpaid bills on to his property tax obligation. Defendant further argues that plaintiff's claim should therefore have been brought as an
Article 78 proceeding and, pursuant to CPLR 217, plaintiff had four months from receipt of each of the bills in which to commence that proceeding, and he failed to do so.
In the Court's view, plaintiff's small claims action does not challenge the validity of the subject water bills or the validity of the subsequent relevy. In fact, it is undisputed that plaintiff has already been reimbursed by defendant for the overpayment of those water usage charges. Rather, plaintiff commenced this action to recoup the attorneys fees, mortgage modification fees, and bank attorney fees he incurred when his mortgage went into foreclosure as a result of plaintiff's failure to pay his full monthly mortgage obligation, which had been increased due to the relevy of unpaid water bills on to his property tax bill. Accordingly, an Article 78 proceeding is not the appropriate vehicle in which to seek such relief.
Defendant further contends that if plaintiff's claim should proceed as a small claims action, the claim must be dismissed due to plaintiff's failure to comply with General Municipal Law (GML) § 50-e, which requires that plaintiff serve a municipality with a notice of claim within 90 days from when a claim arises. Plaintiff served a notice of claim on December 30, 2010. As plaintiff has not provided any documentation as to when he incurred the fees for which he now seeks reimbursement, the Court does not have the necessary facts to determine when his subject claim arose. Thus, there is not a basis to decide the GML notice of claim issue at this time.
Defendant's motion to dismiss can not be granted on the grounds of plaintiff's failure to commence a timely CPLR Article 78 proceeding or to timely serve a GML § 50-e notice of claim. However, the Court finds that this case does not present questions of fact to be determined at trial and, based upon his written submissions thus far, plaintiff has not raised sufficient factual allegations or a sufficient legal theory to support his claim for reimbursement of fees related to his mortgage going into foreclosure. Accordingly, pursuant to CPLR § 3211(c), the parties are hereby advised that the Court will hereafter treat defendant's motion as a motion for summary judgment. The parties are accordingly being provided an opportunity to submit further written submissions for the purpose of bringing to the Court's attention any additional relevant facts related to the subject claim.
Plaintiff is hereby directed to file with the Court any further submissions on or before July 18, 2011, a copy of which must be served upon defendant by that date. Defendant is directed to thereafter submit to the Court any written response to plaintiff's submissions on or before July 29, 2011 and to serve a copy of same upon plaintiff by that date. After review and consideration of the parties' submissions, the Court will then render a written decision on the pending motion for summary judgment.
So ordered.