Consolidated Edison Co. of New York, Inc. v. City of New York

• Decision Date: 25 March 1991
• Citation: 567 N.Y.S.2d 545,171 A.D.2d 865
• Parties: In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant, v. The CITY OF NEW YORK, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 545

567 N.Y.S.2d 545

171 A.D.2d 865

In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK INC., Appellant, v. The CITY OF NEW YORK, et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division Second Department.

March 25, 1991.

Richard W. Babinecz, New York City (Maura A. Kilroy, of counsel), for appellant.

Victor A. Kovner, Corp. Counsel, New York City (Larry A. Sonnenshein, Fred Kolikoff and Julian Bazel, of counsel), for respondents.

Before BRACKEN, J.P., and KUNZEMAN, KOOPER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent New York City Board of Estimate dated October 13, 1988, which adopted a resolution for underground placement of utility lines, and, inter alia, for declaratory relief, the Consolidated Edison Company of New York Inc. appeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, Queens County (Dunkin, J.), entered August 16, 1989, which, inter alia, dismissed its fifth cause of action seeking damages for being required to place its utility lines underground pursuant to a Board of Estimate resolution.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Pursuant to an October 13, 1988, resolution by the New York City Board of Estimate, the Consolidated Edison Company of New York Inc. (hereinafter Con Ed) was required to place its utility lines underground in coordination with a certain portion of a capital highway reconstruction project on Northern Boulevard. On this appeal, Con Ed claims, inter alia, that it is entitled to recover the increased cost of having to place its lines underground instead of merely moving its utility poles to accommodate the widening of Northern Boulevard. We disagree.

It is well settled that "utility companies, which have been granted the 'privilege' of laying their pipes and mains in the public streets * * * must relocate them at their own expense 'whenever the public health, safety or convenience requires the change to be made' and that departure from this settled principle is recognized only 'when the change is required in behalf of other public service corporations or in behalf of municipalities exercising a proprietary instead of a governmental function' " (Matter of Consolidated Edison Co. of N.Y. v. Lindsay, 24 N.Y.2d 309, 316-317, 300 N.Y.S.2d 321, 248 N.E.2d 150 [emphasis in original], quoting Transit Comm. v....