Nassau Suffolk Contractor's Ass'n, Inc. v. Public Service Com'n

CourtNew York Supreme Court Appellate Division
Citation559 N.Y.S.2d 393,163 A.D.2d 700
PartiesIn the Matter of NASSAU SUFFOLK CONTRACTOR'S ASSOCIATION, INC., et al., Petitioners, v. PUBLIC SERVICE COMMISSION of the State of New York et al., Respondents.
Decision Date12 July 1990

Lewis & Greer, P.C. (Lou Lewis, of counsel), Poughkeepsie, for petitioners.

William J. Cowan, Albany, for Public Service Com'n of State of N.Y., respondent.

Victor A. Staffieri, Hicksville, for Long Island Lighting Co., respondent.



Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Public Service Commission which approved an agreement providing, inter alia, for the transfer of respondent Long Island Lighting Company, Inc.'s Shoreham Nuclear Power Station to the Long Island Power Authority.

Petitioners commenced this CPLR article 78 proceeding to challenge a determination by respondent Public Service Commission (hereinafter the PSC) approving a February 28, 1989 agreement between the Governor and respondent Long Island Lighting Company (hereinafter LILCO) providing for the transfer of the Shoreham Nuclear Power Plant (hereinafter Shoreham) to the Long Island Power Authority (hereinafter LIPA), to be followed by its closing and decommissioning, and approving a proposed rate moderation agreement between LILCO and the PSC's staff granting LILCO certain rate increases over a period of years. In Matter of Citizens for an Orderly Energy Policy v. Cuomo, App.Div., 559 N.Y.S.2d 381 [decided herewith], we upheld various determinations by various public entities, including the PSC, in approving and/or executing that agreement. For a more complete description of the factual background of the 1989 agreement and the PSC determination under review herein, reference should be made to the companion case.

One issue that may be quickly disposed of is petitioners' contention that the PSC violated the State Environmental Quality Review Act (ECL art. 8) in approving the settlement agreement and the rate moderation agreement without conducting environmental review. The identical objections were addressed in Citizens and found legally insufficient. Petitioners have not advanced any additional arguments persuasive of a different conclusion here.

Alternatively, petitioners claim that the PSC violated their procedural due process rights and statutory rights (citing Public Service Law § 66[12] to a full hearing by imposing an expedited hearing schedule on the settlement agreement and rate increase issues and by essentially "rubber stamping" a secretly negotiated rate plan which was based on stale data. While it is true that the hearings in this proceeding were concluded far more quickly than in the normal rate case before the PSC, petitioners have not demonstrated that there was any curtailment of the rights of interested parties to present testimony, engage in cross-examination and to rebut adverse claims (see, Matter of New York Tel. Co. v. Public Serv. Commn. of State of N.Y., 59 A.D.2d 17, 19, 397 N.Y.S.2d 223).

The PSC's determination herein was the fourth consideration of LILCO's rates in a 15-month period. As is also more fully described in Citizens, only some six months previously the PSC held hearings, considered and approved a Shoreham settlement agreement containing rate provisions quite similar to the proposed rate moderation agreement approved here. In calling for hearings on LILCO's rates in this proceeding, the PSC suggested using the rate determination in the prior Shoreham settlement review as a point of departure. Thereafter, not only was the compromise rate agreement between LILCO and the PSC staff submitted, the State Consumer Protection Board offered a separate proposal and various interested parties presented testimony and written comments on each proposal.

The PSC's decision sets forth a rational basis for its conclusion that the cumulative information it had before it, from almost continuous LILCO rate proceedings over the past several...

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5 cases
  • Citizens for an Orderly Energy Policy, Inc. v. Cuomo
    • United States
    • New York Court of Appeals
    • October 22, 1991
    ...and reasoning of the second determination brought up for our review and Page 189 [582 N.E.2d 572] reflected in the Per Curiam opinion at 163 A.D.2d 700, 559 N.Y.S.2d The Citizens for an Orderly Energy Policy and the Dollard petitioners contend that the Settlement Agreement contravenes the L......
  • Long Island Lighting Co. v. Assessor and Bd. of Assessment Review for Town of Brookhaven
    • United States
    • New York Supreme Court Appellate Division
    • July 13, 1998
    ...opposition on the State and local levels was overwhelming (see, Nassau Suffolk Contr.'s Assn. v. Public Serv. Commn. of State of N.Y., 163 A.D.2d 700, 702, 559 N.Y.S.2d 393, affd. 78 N.Y.2d 398, 576 N.Y.S.2d 185, 582 N.E.2d 568). Indeed, LIPA was created for the express purpose of remedying......
  • Maurice Graubart & Sons, Inc. v. John Di Guilio, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • July 12, 1990
  • Nassau Suffolk Contractors Ass'n, Inc. v. Public Service Com'n of State of N.Y.
    • United States
    • New York Court of Appeals
    • February 19, 1991
    ...Matter of Nassau Suffolk Contr's. Assn., Inc. v. Public Serv. Commn. of State of N.Y. COURT OF APPEALS OF NEW YORK Feb 19, 1991 163 A.D.2d 700, 559 N.Y.S.2d 393 MOTION FOR LEAVE TO GRANTED OR DENIED. Granted. ...
  • Request a trial to view additional results

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