Borenkind v. Consolidated Edison Co. of New York

• Decision Date: 28 March 1995
• Citation: 164 Misc.2d 808,626 N.Y.S.2d 414
• Parties: Sandra BORENKIND et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Sued Herein as Consolidated Edison Corporation, Defendant.
• Court: New York Supreme Court

Page 414

626 N.Y.S.2d 414

164 Misc.2d 808

Sandra BORENKIND et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Sued Herein as Consolidated Edison Corporation, Defendant.

Supreme Court, Westchester County IAS Part.

March 28, 1995.

Uncyk, Borenkind & Nadler, New York City, for plaintiffs.

Richard W. Babinecz, New York City, for defendant Consolidated Edison.

W. DENIS DONOVAN, Justice.

By this motion, defendant electric utility company seeks summary judgment dismissing the complaint upon ground that no cognizable cause of action is demonstrated.

Plaintiffs claim consequential damages from defendant utility company for a partial taking of value of their formerly owned residence which was located in the vicinity of three parallel high voltage power lines owned and operated by the defendant. The plaintiffs claim that upon the recent sale of the property, they suffered $60,000 damages due to decreased market value occasioned by the current public perception phenomenon that exposure to high voltage power lines either poses or may pose health risks to those in the vicinity of such lines.

In December of 1993, plaintiffs sold their property for $350,000, which was $265,000 more than their purchase price of $85,000 in 1977 but, it is claimed, $60,000 less than they could have realized upon an otherwise fair market value of $410,000 if, as related to them by various brokers, there were not this public perception of health risk.

It appears from the evidence produced here by defendant that the power lines are distanced from the former property by both a public street and another privately owned parcel; they are actually located 315.2 feet, 400.9 feet and 480.8 feet from the nearest boundary of plaintiffs' former property. The towers that support the lines stand more than 100 feet tall. These lines long pre-existed the plaintiffs' purchase of the property in 1977 and were, in fact, constructed between 1932 and 1961 and modernized between 1970 and 1977. It is not claimed by plaintiffs that defendant has not complied with all applicable standards for electrical and magnetic field emissions established by the New York State Public Service Commission, the sole regulatory agency overseeing electric transmission lines in the State. Nevertheless, plaintiffs have charged the defendant utility with a standing duty to either shield the lines themselves or to wage a public information campaign proving the unreasonableness of the health risk perception to the general public so that fair market values are not impacted.

The motion for summary judgment of dismissal on the grounds set forth below is granted and the complaint is dismissed, there being no material questions of fact or issues of law extant upon these papers.

The two page complaint, after some necessary factual detail, alleges that at some date or period of time not yet ascertained or ascertainable, the general public began to, and continues to perceive that there is a health risk from...