Unifirst Corp. v. Town of Hamburg

219 A.D.2d 822, 631 N.Y.S.2d 973, 1995 N.Y. App. Div. LEXIS 10857

Opinion

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 AD2d 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]). (Appeal from Judgment of Supreme Court, Erie County, Joslin, J. — CPLR art 78.) Present — Pine, J. P., Lawton, Callahan, Balio and Davis, JJ.