—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action seeking a declaration that certain billing practices of the Department of Water of the City of Oswego as authorized by the Common Council of the City of Oswego are unconstitutional. Since 1973 only single-family, owner-occupied homes in the City of Oswego have been billed for their water usage at a flat rate. Furthermore, since 1994 income eligible property owners age 65 and older have received a partial water[*960] bill exemption. Plaintiff, a senior citizen who rents a single-family home that is subject to metered water usage, contends that the differential treatment of single-family, owner-occupied homes is violative of equal protection. While Supreme Court properly denied her motion for summary judgment, it erred in granting summary judgment to defendants dismissing the complaint. None of the parties is entitled to summary judgment. “This is not a case to be decided on the pleadings. The constitutionality of the regulations must be decided after the facts are determined on the trial” (Weiskopf v City of Saratoga Springs, 269 NY 634, 635). We therefore modify the judgment by denying defendants summary judgment and reinstating the complaint. Finally, we note with disapproval that defendant City of Oswego did not file a brief and did not participate at oral argument of this appeal (see, 22 NYCRR 1000.2 [d]; 1000.11 [a]). (Appeal from Judgment of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.) Present— Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.