Howitt Enterprises-Sweden, Inc. v. Monroe County Water Authority

52 A.D.3d 1233, 859 N.Y.S.2d 825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2008
• Status: Published

Opinion

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (David M. Barry, J.), entered June 14, 2007 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding challenging the imposition of a quarterly fire service charge for fiscal year 2007 by respondent for service provided to private fire hydrants on petitioners’ properties. Supreme Court properly determined that the charge constitutes a permissible fee rather than an unauthorized tax and dismissed the petition (cf. Matter of Phillips v Town of Clifton Park Water Auth., 286 AD2d 834, 835-836 [2001], lv denied 97 NY2d 613 [2002]). Contrary to petitioners’ contention, the charge is not impermissibly imposed “for revenue purposes or to offset the cost of general governmental functions” (Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 465 [1975]). Rather, the record establishes that the charge is properly exacted to cover the cost of private fire protection services from property owners who derive a benefit therefrom (see generally Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 162 [1976], rearg denied 40 NY2d 846 [1976]). Present—Scudder, P.J., Hurlbutt, Smith, Green and Gorski, JJ.