Opinion
Filed June 18, 1999
Appeal from the Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND SCUDDER, JJ.
Appeal unanimously dismissed without costs. Memorandum: Plaintiff commenced this action seeking recovery of sewer rents paid to the Village of Westfield (defendant). Plaintiff and defendant entered into an agreement in November 1975 whereby defendant agreed to accept plaintiff's wastewater in return for a fee. Defendant charged plaintiff based in part upon plaintiff's "assigned capacity", or the maximum amount of wastewater that defendant agreed to accept. Plaintiff contends that defendant should charge it only for the actual amount of waste it sends to defendant's treatment plant.
In October 1995 Supreme Court granted plaintiff's cross motion for partial summary judgment. The court thereafter granted defendants' motion for renewal and vacated its October 1995 order, and plaintiff appealed. We reinstated the October 1995 order on the ground that the evidence submitted by defendants was not a proper basis for renewal ( Welch Foods v. Wilson, 247 A.D.2d 830). Our decision involved only the procedural aspects of the motion for renewal and thus was not a determination on the merits of the issues raised in the October 1995 order.
Although the October 1995 order was reinstated, the court subsequently held in May 1998 that the October 1995 order was no longer in effect. The court held that, in making its decision, it had improperly relied on a neutral advisors' report that had not been provided to the parties. Explaining that due process concerns were implicated, the court determined that extraordinary circumstances existed to vacate the October 1995 order.
The doctrine of law of the case provides that, once an issue is judicially determined, it is not to be reconsidered by Judges or courts of coordinate jurisdiction in the course of the same litigation ( see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165, rearg denied 37 N.Y.2d 817; Holloway v. Cha Cha Laundry, 97 A.D.2d 385, 386). However, "[t]he doctrine of law of the case is 'not an absolute mandate on the court,' since it may be 'ignored' in extraordinary circumstances vitiating its effectiveness as a rule fostering orderly convenience * * * The error sought to be corrected must, however, be so plain * * * [that it] would require [the] court to grant a reargument of a causes" ( Foley v. Roche, 86 A.D.2d 887, lv denied 56 N.Y.2d 507).
We agree with the court that extraordinary circumstances existed here for the court to set aside its October 1995 order. Indeed, "[w]ere this [C]ourt to reverse [Supreme Court] for its bold practicality, we would be unnecessarily subjecting defendant to the expense of * * * further appeals to obtain a preordained outcome. The law cannot be so unyielding" ( Foley v. Roche, supra, at 887). The court's reliance on a report that had not been provided to any of the parties was a violation of procedural due process, which guarantees every party notice and an opportunity to be heard ( see, US Const, 14th Amend, § 1; Zinermon v. Burch, 494 U.S. 113, 125-128; Janowski v. Janowski, 58 A.D.2d 980, 981; see also, 22 NYCRR 100.3 [B] [6] [b]). Thus, the court properly vacated its October 1995 order, and defendant's appeal from that order is moot.
By its August 1997 order, the court properly granted that part of defendant's motion seeking dismissal of plaintiff's claims under the Federal Water Pollution Control Act ( 33 U.S.C. § 1251 et seq.). Plaintiff has no private right of action or 42 U.S.C. § 1983 claim under that Act ( see, Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1, 14-18).
The "pay first, litigate later" rule requires taxpayers to pay a disputed tax before challenging the propriety of the tax in a court proceeding ( see, Matter of Morris Investors v. Commissioner of Fin. of City of N.Y. 69 N.Y.2d 933, 936; Grant Co. v. Srogi, 52 N.Y.2d 496, 515-516; Matter of R C Outfitters v. Bouchard, 101 A.D.2d 642, 643). That rule applies to the collection of municipal taxes, including sewer charges ( see, Singer v. Department of Fin., 191 A.D.2d 320), and thus plaintiff must pay the sewer rents for tax years 1995-96 and 1996-97 before challenging those amounts in this action. The court did not abuse its discretion in requiring defendant to post a $2 million bond.
The court also did not abuse its discretion in denying plaintiff's motion for recusal ( see, People v. Moreno, 70 N.Y.2d 403, 405-406; Kern v. City of Rochester, 217 A.D.2d 918). Further, the court did not abuse its discretion in denying plaintiff's motion for a change of venue ( see, Lubitz v. Mehlman, 166 A.D.2d 212, 213). Plaintiff did not meet its burden of establishing that an impartial trial cannot be had in Chautauqua County ( see, CPLR 510; Albanese v. West Nassau Mental Health Ctr., 208 A.D.2d 665, 666; Thomas v. Small, 121 A.D.2d 622, 624). Finally, the court did not abuse its discretion in granting defendant's cross motion for admonition of counsel for plaintiff ( see, Lowitt v. Korelitz, 152 A.D.2d 506; Fiorletti v. Kamin, 85 A.D.2d 620)
We modify the order in appeal No. 3, therefore, by granting that part of defendant's motion to dismiss the claims for tax years 1995-96 and 1996-97 unless plaintiff, within 90 days of service of a copy of the order of this Court with notice of