Allied Sanitation, Inc. v. Aponte

Appellate Division of the Supreme Court of New York

Allied Sanitation, Inc. v. Aponte

142 A.D.2d 511, 530 N.Y.S.2d 146, 1988 N.Y. App. Div. LEXIS 7246

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1988

StatusPublished

Cited by2 cases

This text of 142 A.D.2d 511 (Allied Sanitation, Inc. v. Aponte) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allied Sanitation, Inc. v. Aponte, 142 A.D.2d 511, 530 N.Y.S.2d 146, 1988 N.Y. App. Div. LEXIS 7246 (N.Y. Ct. App. 1988).

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Opinion

— Judgment, Supreme Court, New York County (Stecher, J.), entered March 23, 1987, which denied respondent’s cross motion for an order dismissing the petition, unanimously reversed, on the law, and the cross motion for an order dismissing the petition as time barred granted, without costs.

This is a proceeding brought pursuant to CPLR article 78. Petitioners are engaged in the business of removing commercial and industrial refuse. Respondent is charged with fixing maximum rates for the removal of such refuse.

[512]*512The present dispute concerns the rate that petitioners are able to charge for the removal of refuse. Petitioners are engaged in the collection of refuse in open-top roll-off containers rather than by rear-end loaders. Roll-off containers are used for class 2 refuse, consisting of noncompacted refuse, and for class 7 refuse, consisting of demolition and construction debris. The roll-off containers are large, open containers which are left at a site until filled and then removed to the Freshkill landfill on Staten Island or to transfer stations, from which they are taken to Staten Island. Rear-end loaders are used to remove class 1 refuse such as household or restaurant garbage. Class 1 refuse is loaded through the back of a vehicle and then pushed and compacted into the truck by a blade.

Petitioners, who operate roll-off containers, sought a rate higher than that charged by businesses operating rear-end loaders. A Hearing Officer for the respondent recommended a higher rate for roll-off containers than for rear-end loaders. Nevertheless, respondent Commissioner found that there was insufficient evidence to support the distinction and he determined that the rate charged for roll-off containers and rear-end loaders should be the same.

The Commissioner’s determination was published on August 13, 1986 and the effective date was August 25, 1986. Petitioners received notice of the determination on August 13, 1986.

The issue here is whether the time for petitioners to bring an article 78 proceeding runs from August 13, 1986, the date on which petitioners received notice, or August 25, 1986, the effective date of the rate. CPLR 217 requires an article 78 proceeding to be brought "within four months after the determination to be reviewed becomes final and binding upon the petitioner”. In Matter of Edmead v McGuire (67 NY2d 714, 716 [1986]), the Court of Appeals stated that "where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified”. Since this proceeding was not commenced until December 19, 1986, it was not commenced within the statutory four-month period and must be dismissed. Concur — Sandler, J. P., Sullivan, Asch, Milonas and Smith, JJ.

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— Judgment, Supreme Court, New York County (Stecher, J.), entered March 23, 1987, which denied respondent’s cross motion for an order dismissing the petition, unanimously reversed, on the law, and the cross motion for an order dismissing the petition as time barred granted, without costs.

This is a proceeding brought pursuant to CPLR article 78. Petitioners are engaged in the business of removing commercial and industrial refuse. Respondent is charged with fixing maximum rates for the removal of such refuse.

[512]*512The present dispute concerns the rate that petitioners are able to charge for the removal of refuse. Petitioners are engaged in the collection of refuse in open-top roll-off containers rather than by rear-end loaders. Roll-off containers are used for class 2 refuse, consisting of noncompacted refuse, and for class 7 refuse, consisting of demolition and construction debris. The roll-off containers are large, open containers which are left at a site until filled and then removed to the Freshkill landfill on Staten Island or to transfer stations, from which they are taken to Staten Island. Rear-end loaders are used to remove class 1 refuse such as household or restaurant garbage. Class 1 refuse is loaded through the back of a vehicle and then pushed and compacted into the truck by a blade.

Petitioners, who operate roll-off containers, sought a rate higher than that charged by businesses operating rear-end loaders. A Hearing Officer for the respondent recommended a higher rate for roll-off containers than for rear-end loaders. Nevertheless, respondent Commissioner found that there was insufficient evidence to support the distinction and he determined that the rate charged for roll-off containers and rear-end loaders should be the same.

The Commissioner’s determination was published on August 13, 1986 and the effective date was August 25, 1986. Petitioners received notice of the determination on August 13, 1986.

The issue here is whether the time for petitioners to bring an article 78 proceeding runs from August 13, 1986, the date on which petitioners received notice, or August 25, 1986, the effective date of the rate. CPLR 217 requires an article 78 proceeding to be brought "within four months after the determination to be reviewed becomes final and binding upon the petitioner”. In Matter of Edmead v McGuire (67 NY2d 714, 716 [1986]), the Court of Appeals stated that "where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified”. Since this proceeding was not commenced until December 19, 1986, it was not commenced within the statutory four-month period and must be dismissed. Concur — Sandler, J. P., Sullivan, Asch, Milonas and Smith, JJ.

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Bluebook (online)

142 A.D.2d 511, 530 N.Y.S.2d 146, 1988 N.Y. App. Div. LEXIS 7246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allied-sanitation-inc-v-aponte-nyappdiv-1988.

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