Jaffe Plumbing & Heating Co. v. Brooklyn Union Gas Co.
| Decision Date | 08 August 1966 |
| Docket Number | AFL-CI,D |
| Citation | 51 Misc.2d 1083,275 N.Y.S.2d 24 |
| Parties | JAFFE PLUMBING & HEARING CO., Inc., Sylvester Vascellaro Plumbing & Heating, Inc., Garofalo Plumbing & Heating Corp. and P. F. Grieser Corp., on behalf of themselves and all other plumbing contractors licensed to engage in the plumbing business in the City of New York, similarly situated, Plaintiffs, v. BROOKLYN UNION GAS COMPANY, City of New York, Norge Stone Co., Inc., Dyker-Hill Homes, Inc., Sturm Construction Corp., Formica Estates, Inc., Salvatore Gallinaro, Carole Estates, Inc., Glendale Homes, Inc., Mira Construction Corporation, Drogo Realty Corporation, Sherlock Builders, Inc., Skyway Homes, Inc., and Local 101 TWU,efendants. |
| Court | New York Supreme Court |
M. HENRY MARTUSCELLO, Justice.
This is an action for injunctive and declaratory relief brought by four licensed plumbing contractors against Brooklyn Union Gas Co. ('Brooklyn Union'), the City of New York ('City') and various builders.
Plaintiffs seek a judgment declaring (1) that under the Administrative Code of the City of New York ('Code') and other applicable statutes, only licensed plumbers may install gas piping from a consumer's property line to within the consumer's building; and (2) that only material prescribed by the Code may be used in connection with such work; and (3) that the City shall not allow or approve such work unless done by a licensed plumber or under his supervision. A permanent injunction is also sought to restrain the defendants other than the City from installing or permitting the installation of such gas piping except by a duly licensed plumber.
Plaintiffs now move for a preliminary injunction pending the trial of the action.
All the defendants have answered and oppose plaintiffs' motion; and except for defendant City cross-move for judgment dismissing the complaint upon the ground that it fails to state a cause of action, or in the alternative, for summary judgment upon the ground that there are no triable issues of fact nor is there merit to the action. As intervenor, Local 101 TWU, AFL-CIO, representing employees of Brooklyn Union, opposes the motion for injunctive relief.
It appears that Brooklyn Union, with the permission and approval of the City, is installing gas service piping from the street main to within the walls of buildings on premises of the defendant builders, and is replacing old gas service installations on various other premises, using for such work its own employees or contractors, none of whom is a licensed plumber.
Plaintiffs challenge Brooklyn Union's right thus to install or replace gas services on consumers' premises, claiming (1) that it is not authorized by its charter nor obligated by any statute to engage in such operations, and (2) that § C26--164.0(b) of the Code requires the installation of gas service from the property line to within the building by a licensed plumber and prohibits installation by employees or contractors of a public utility corporation.
Brooklyn Union asserts that it does have corporate and statutory authority to make such installations and all defendants contend that § C26--164.0(b) has no application to services installed by a public utility.
Plaintiffs further claim that Brooklyn Union uses copper tubing in violation of provisions of the Code specifying the material to be used for gas service purposes.
Brooklyn Union denies this charge. § C26--1326.0 of the Code permits the use of steel, wrought iron, brass, and copper pipes, provided they conform to certain specifications therein set forth. Thus, copper pipe must conform to the standard specifications of A.S.T.M. (American Society for Testing and Material) Designation B42--49. Two officers of Brooklyn Union, in affidavits submitted by them, aver that approved wrapped steel pipe is used for all original and replacement gas service installations; and that, with the approval of the Building Department of the City, copper tubing conforming to the standard required for copper pipe set forth in § C26--1326.0 is used in connection with renewed services which involve merely the insertion of such tubing through the sleeves of the original steel pipes.
These averments being in no wise disputed by plaintiffs, I find that the use of copper tubing in the manner indicated does not violate § C26--1326.0 or any other provisions of the Code specifying what materials are permissible for gas services. Moreover, even if a violation thereof did exist, same would be unavailing to the plaintiffs since they have failed to allege or show how the use of copper tubing in any way affects their legal rights or interests, requiring the intervention of the equitable jurisdiction of this court for redress thereof (Leonard v. John Hancock Mutual Life Ins. Co., Sup., 118 N.Y.S.2d 170, aff'd. 281 App.Div. 859, 119 N.Y.S.2d 918; Gold Sound, Inc. v. City of New York, 195 Misc. 291, 89 N.Y.S.2d 860).
Turning now to plaintiffs' claim that Brooklyn Union lacks corporate and statutory authority to install services beyond the consumer's property line, I find that this too lacks merit.
Brooklyn Union was organized in 1895 as a gas corporation under the Transportation Corporations Law. Its operations are subject to the jurisdiction of the Public Service Commission of this State and its charges and services are regulated by the Commission through filed rate schedules. Public Service Law, § 65 and § 66.
The claim that Brooklyn Union is not empowered by its charter to make the installations in question is in no way substantiated by the plaintiffs. Further, they could not urge Ultra vires as such a claim would be available only to a stockholder, the corporation itself or the Attorney General. Business Corporation Law, § 203.
The Transportation Corporations Law provides:
' § 12. Gas and electricity must be supplied on application
Upon written application of the owner or occupant of any building within one hundred feet of any main of a gas corporation * * * it shall supply gas * * * as may be required for lighting such building * * * provided that no such corporation shall be required to lay service pipes * * * to any applicant where the ground in which such pipe * * * is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the same; nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay the cost of his proportion of the pipe * * * required to be installed, and the expense of the installation of such portion.'
This section has been construed as imposing an obligation upon a gas corporation to furnish service and to lay service piping to an applicant's building within 100 feet of its main, provided the applicant, if required, pays the cost of its installation from the property line to within the wall of the building (City of Rochester v. Rochester Gas and Electric Corp., 233 N.Y. 39, 46, 134 N.E. 828, 830; Draney v. Central Hudson Gas & Electric Co., 10 State Dept. Reports 330).
Under the rate schedule filed by Brooklyn Union with the Public Service Commission, the service pipe in the street and its extension within the property line up to fifty feet is installed without cost to the consumer. Beyond said fifty feet a charge is made.
Upon request for gas service, Brooklyn Union installs the gas service from the main to within the consumer's building with its own employees or by contractors. This method of installation has been employed by it ever since it was organized in 1895. It appears that other public utility corporations supplying gas in this City have used the same method for many decades.
In 1937 the Legislature enacted the Administrative Code of the City of New York (L.1937, ch. 929).
§ C26--164.0(b) of the Code, relied upon by plaintiffs to support their claim that the installations involved herein must be made by licensed plumbers, has existed...
To continue reading
Request your trial
-
Cucchi v. New York City Off-Track Betting Corp., No. 91 Civ. 5624 (KC).
... ... See Jaffe Plumbing & Heating Co. v. Brooklyn Union Gas Co., 51 ... ...
-
Crouse-Hinds Co. v. Internorth, Inc.
... ... Business Corporation Law § 203 (McKinney 1963); Jaffe Plumbing & Heating Co. v. 518 F. Supp. 404 Brooklyn ... ...
-
Lotto v. Long Island Lighting Co.
... ... Kovarsky v. Brooklyn Union Gas Co., 279 N.Y. 304, 313, 314, 18 N.E.2d 287, 290, ... in, is strong evidence of the meaning of the law.' (Jaffe Plumbing & Heating Co. v. Brooklyn Union Gas Co., 51 ... ...
-
Consolidated Edison Co. of New York, Inc. v. City of New Rochelle
... ... , of counsel), for intervenor-respondent The Plumbing and Mechanical Contractors Ass'n. of Westchester and Putnam ... Vasile, of counsel), for Utility Workers Union of America, Local Union No. 1-2, AFL-CIO, amicus curiae ... it notified architects, engineers, and plumbing and heating contractors that it would perform the new service ... the customer's property line or beyond ( see, e.g., Jaffe Plumbing & Heating Co., Inc. v. Brooklyn Union Gas Co., 51 ... ...