J.C. Penney Co. v. Town of Oyster Bay , 755 N.Y.S.2d 628 ( 2003 )

In an action, inter alia, for a refund of ad valorem taxes with respect to the Town of Oyster Bay’s Garbage and Disposal District, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Franco, J.), dated December 10, 2001, which, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff has operated a retail department store located at Sunrise Mall in the Town of Oyster Bay since 1973. After using a private garbage collection service for approximately 20 years, the plaintiff commenced this action against the Town seeking, inter alia, a refund of Garbage and Disposal District taxes. The plaintiff contends that the Town effectively failed and refused to collect and dispose of garbage from the subject premises by limiting the number and size of containers of garbage permitted to be picked up from the premises, the number of days and frequency for such pick up, and the place for such pick up, and by refusing to provide dumpster service at the premises.

Contrary to the plaintiff’s contention, the trial court properly dismissed the complaint, as there was no evidentiary showing to establish that any formal demand for garbage collection service was made upon the Town prior to the commencement of this action (see Sysco Corp. v Town of Hempstead, Sup Ct, Nassau County, Mar. 25, 1994, McGinity, J., Index No. 2274/86; Rotundi v Town of Islip, Sup Ct, Suffolk County, July 15, 1975, Bracken, J., Index No. 11756/74; cf. Applebaum v Town of Oyster Bay, 81 NY2d 733, 734-735 [1992]; Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay, 145 AD2d 542 [1988]).

The plaintiff’s remaining contentions are without merit. Feuerstein, J.P., Krausman, McGinity and Mastro, JJ., concur.