Water Board ruled necessary party

Scaccia Realty. Image Credit: Google Maps.

New York City excused for default on a lawsuit regarding water allowance arrears. A&F Scaccia operates a concrete manufacturing plant at 104-17 148th Street in Jamaica, Queens. Between 2007 and 2015, the NYC Department of Environmental Protection charged A&F Scaccia Realty Corp. for low-estimated water readings due to a broken water meter on their commercial property. On discovery of the error, the DEP reassessed the concrete company’s water usage in 2016 and charged A&F Scaccia for $88,000. The fine reflected two years of unpaid usage fees for the access to the NYC’s water supply.

A&F Scaccia responded by filing a water allowance petition for reduced rates and to excuse the past charges. DEP rejected the petition because water allowance petitions are only granted for future use, renewed by a company every two years, and allowances cannot be applied retroactively. A&F Scaccia had failed to apply for the water allowance since 2007. DEP also rejected the water allowance renewal application because the $88,000 in arrears must be paid before A&F can receive any future water allowances.

The Water Board affirmed the DEP’s decision. A&F Scaccia filed an article 78 petition against DEP and the City to review the Water Board’s decision but failed to name the Water Board as a respondent. Neither the City nor the DEP appeared for the judgement in response to A&F Scaccia’s petition. Judge Kevin Kerrigan defaulted the City and the DEP, and granted A&F Scaccia a refund of the retroactive charges.

The City appealed the decision and asked the court to vacate the default judgement because the Water Board was not named in the petition. The City argued that the Water Board was a necessary party because any ruling would be directed to the Water Board and would affect its operations. The Water Board sets the rate schedules of sewer usage and wastewater allowances, which are both challenged in A&F’s petition.

The Appellate Division ruled that the default judgement had to be vacated because the Water Board was a necessary party and should have the opportunity to argue their case. The Appellate Division also held that the City’s default was excused and should be forgiven. The Court remanded the case back to the lower court in order to hear arguments from all parties.

By: Candace Riggs (Candace is a New York Law School student, Class of 2023).

A&F Scaccia Realty Corp. v. NYC Dept. of Envtl. Protection,161 N.Y.S. 3d 108 (2d Dep’t 2021).


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