Opinion
September 29, 1995
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Pine, J.P., Lawton, Callahan, Balio and Davis, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed petitioner's CPLR article 78 proceeding because respondents did not act arbitrarily or capriciously in basing petitioner's initial sewage treatment charges upon information supplied by petitioner in its application for a sewer permit. Actual flow figures are now available and will form the basis to compute subsequent charges for sewage treatment. Petitioner's argument that the sewage treatment charge is unlawful is raised for the first time on appeal and therefore is not properly before this Court for review (see, Alberti v Eastman Kodak Co., 204 A.D.2d 1022, 1023). Furthermore, that argument is without merit. Where there is no actual data to compute the charges for the preceding year, the taxing authorities may determine the charges based upon "any equitable basis" (County Law § 266 [a]).