Opinion
April 30, 1964
Order, entered on or about March 27, 1963 and the judgment entered thereon on or about April 3, 1963 granting summary judgment to plaintiffs, unanimously affirmed, with costs to respondents. The action presented the question of whether plaintiffs' properties had been lawfully assessed for work done by the City of New York on a pre-existing sewer adjacent to their properties or whether the cost of the work must be paid out of the city's Sewer Rent Fund. In granting summary judgment to plaintiffs, Special Term (in an opinion reported at 38 Misc.2d 607) relied upon and quoted from the provisions of section 453 Gen. Mun. of the General Municipal Law. That reliance was misplaced since pursuant to subdivisions 26 and 26-a of section 20 Gen. City of the General City Law, the City of New York had established a system for the payment of sewer rents by the enactment of section 82d9-9.1 of the Administrative Code; and it was the city's Sewer Rent Law which governed the rights of the parties rather than the provisions of article 14-F of the General Municipal Law. Nevertheless, plaintiffs are still entitled to summary judgment. No triable issue is created by the city's untenable argument that the work done on the sewer in the instant case constituted a reconstruction of a combined sewer for which the city's sewer rent fund was not chargeable. The work done here was in connection with the maintenance, operation and repair of the sewer system, the cost for which was nonassessable.
Concur — Breitel, J.P., Valente, McNally, Stevens and Eager, JJ.