Rodriguez v. Lloyd

233 A.D.2d 120, 649 N.Y.S.2d 782, 1996 N.Y. App. Div. LEXIS 11409

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Stuart Cohen, J.), entered March 3, 1995, which dismissed petitioners’ amended CPLR article 78 petition challenging respondent’s assessment, unanimously affirmed, without costs.

The administrative determination that petitioners’ lot was properly assessed for garbage removal was rational (see, Matter of Colton v Berman, 21 NY2d 322, 329) and comported with the requirements of due process (see, e.g., Matter of Tully Constr. Co. v Hevesi, 214 AD2d 465, 466, appeal withdrawn 87 NY2d 969).

The agency correctly argued before the motion court that petitioners’ purportedly new evidence could not be considered in the article 78 proceeding because it had not been submitted at the administrative level and, we note in addition, was improperly submitted to the court for the first time in reply.

Similarly, petitioners’ arguments that the agency’s general counsel was not a neutral fact-finder and that he improperly failed to direct a transcription of the administrative proceeding were not raised before the motion court and therefore may not be considered at this juncture. Concur—Sullivan, J. P., Ellerin, Ross, Tom and Mazzarelli, JJ.