Surcharges Set Aside

Under an agreement with the New York State Department of Environmental Conservation, the New York City DEP required landlords of residential buildings containing six or more apartments to install water meters in 2000. Landlords were required either to install the meters themselves by June 30, 2000, or to ask DEP by June 30, 2000, to install the meters. DEP received landlord's request that DEP install the meters on June 20, 2000. DEP didn't meet the installation deadline and imposed a 100 percent surcharge on landlord for not meeting the installation deadline. Landlord then had its own plumber make the installation to avoid the charges. But DEP continued to bill landlord the surcharge plus late fees. Landlord asked DEP to revoke the surcharge and related charges, but DEP refused to do so. The charges totaled $6,000. DEP claimed that landlord had the choice to make the installation itself or have DEP do it, and that it did the installation itself and did it late. Landlord appealed. The court ruled for landlord and revoked the surcharge. DEP's decision was irrational and unreasonable. Landlord complied with the rules. DEP couldn't fault landlord for its own failure to install the water meters by June 30, 2000, or for landlord's subsequent installation. Landlord made its own installation only after DEP improperly imposed a surcharge.

Botanical Realty Assoc. v. City of N.Y. Dept. of Environmental Protection: NYLJ, 4/20/05, p. 19, col. 1 (Sup. Ct. Bronx; Renwick, J)