New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp.

CourtNew York Supreme Court Appellate Division
Writing for the CourtCARDONA
Citation222 A.D.2d 792,634 N.Y.S.2d 830
Decision Date07 December 1995
PartiesNEW YORK STATE DAM LIMITED PARTNERSHIP, Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Respondent.

Page 830

634 N.Y.S.2d 830
222 A.D.2d 792
NEW YORK STATE DAM LIMITED PARTNERSHIP, Appellant,
v.
NIAGARA MOHAWK POWER CORPORATION, Respondent.
Supreme Court, Appellate Division,
Third Department.
Dec. 7, 1995.

Couch, White, Brenner, Howard & Feigenbaum (Leslie F. Couch, of counsel), Albany, for appellant.

Blabey & Sheehan (Timothy P. Sheehan, of counsel), Albany, for respondent.

Before CARDONA, P.J., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

CARDONA, Presiding Justice.

Appeals (1) from an order of the Supreme Court (Dier, J.), entered June 10, 1994 in Warren County, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, and (2) from an order of said court, entered December 9, 1994 in Warren County, which denied plaintiff's motion for reconsideration.

Adirondack Hydro Development Corporation (hereinafter Adirondack) and defendant entered into a power purchase agreement dated November 5, 1985 which required defendant to accept and pay for all of the electricity produced by a hydroelectric facility owned and operated by Adirondack. The agreement was assigned by Adirondack to plaintiff in 1989. At the time the agreement was executed, it was anticipated that the facility would have a seven-megawatt generating capacity; however, it was ultimately

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designed and built with a generating capacity of 10.3 megawatts. Plaintiff and defendant then executed two amendments to the original agreement, dated January 16, 1990 and March 30, 1990. Both amendments were, however, rejected by the Public Service Commission (hereinafter PSC) in February 1991.

The parties then negotiated a third amendment. Although plaintiff signed the third amendment in June 1991 and forwarded same to defendant on July 8, 1991 for signing, it was never executed by defendant or filed with the PSC (see, Public Service Law § 110[4] ). In determining the price to be paid by defendant, the third amendment used the 1990 "long run avoided cost" schedules (hereinafter LRACS) established by the PSC. In September 1991, however, the PSC, having decided that the 1990 LRACS were glaringly overestimated, withdrew them as a basis for pricing power purchase agreements (see generally, Matter of Xiox Corp. v. Public Serv. Commn. of State of N.Y., 190 A.D.2d 350, 598 N.Y.S.2d 821, appeal dismissed, lv. denied 82 N.Y.2d 790, 604 N.Y.S.2d 551, 624 N.E.2d 688). The PSC's order, dated September 18, 1991, stated that the 1990 LRACS would not apply to any agreements that were being negotiated and would only continue to apply to "fully executed contract[s] filed" with the PSC as of that date. According to plaintiff, it did not learn that the third amendment had never been executed or filed until December 1992. When defendant[222 A.D.2d 793] refused to pay the rate outlined in the third amendment, plaintiff commenced this action in March 1994 alleging, inter alia, that the third amendment was a valid and binding agreement and that defendant breached both it and the original agreement.

Prior to commencing the instant action, plaintiff, in March 1993, along with 16 other owners of hydroelectric generating facilities, commenced a separate action against defendant for, inter alia, breach of contract, contending that defendant was required to purchase all of the facilities' total electric output (see, Philadelphia Corp. v. Niagara Mohawk Power Corp., 207 A.D.2d 176, 621 N.Y.S.2d 237) (hereinafter Philadelphia ). With respect to plaintiff's...

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4 practice notes
  • People v. Sanders
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 2013
    ...( see Matter of Allen v. Strough, 301 A.D.2d 11, 18, 752 N.Y.S.2d 339; New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp., 222 A.D.2d 792, 794 n*, 634 N.Y.S.2d 830; Sam & Mary Hous. Corp. v. Jo/Sal Mkt.Corp., 100 A.D.2d 901, 902, 474 N.Y.S.2d 786; People v. Singleton, 36 ......
  • People v. Helinski
    • United States
    • New York Supreme Court Appellate Division
    • December 7, 1995
    ...of adverse possession for the required 10-year period. ORDERED that the order is reversed, on the law, with one bill of costs to [222 A.D.2d 792] defendants Stanley Helinski and John Helinski against plaintiff, by reversing so much thereof as granted plaintiff's motion and denied the cross ......
  • Deutsche Bank Nat'l Tr. Co. v. Equifirst Corp., Index No. 651957/2013
    • United States
    • United States State Supreme Court (New York)
    • June 21, 2022
    ...on issues identical to those in the prior proceedings or actions (see N Y. State Dam Ltd. Partnership v Niagara Mohawk Power Corp., 222 A.D.2d 792 [3d Dept 1995] [finding the issues were identical, i.e., the validity of the third amendment]; Williams, 211 A.D.2d at 597 [finding the issues a......
  • New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp.
    • United States
    • New York Court of Appeals
    • April 2, 1996
    ...PARTNERSHIP, Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Respondent. Court of Appeals of New York. April 2, 1996. Reported below: 222 A.D.2d 792, 634 N.Y.S.2d Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court's order denyi......
4 cases
  • People v. Sanders
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 2013
    ...( see Matter of Allen v. Strough, 301 A.D.2d 11, 18, 752 N.Y.S.2d 339; New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp., 222 A.D.2d 792, 794 n*, 634 N.Y.S.2d 830; Sam & Mary Hous. Corp. v. Jo/Sal Mkt.Corp., 100 A.D.2d 901, 902, 474 N.Y.S.2d 786; People v. Singleton, 36 A.D.......
  • People v. Helinski
    • United States
    • New York Supreme Court Appellate Division
    • December 7, 1995
    ...of adverse possession for the required 10-year period. ORDERED that the order is reversed, on the law, with one bill of costs to [222 A.D.2d 792] defendants Stanley Helinski and John Helinski against plaintiff, by reversing so much thereof as granted plaintiff's motion and denied the cross ......
  • Deutsche Bank Nat'l Tr. Co. v. Equifirst Corp., Index No. 651957/2013
    • United States
    • United States State Supreme Court (New York)
    • June 21, 2022
    ...on issues identical to those in the prior proceedings or actions (see N Y. State Dam Ltd. Partnership v Niagara Mohawk Power Corp., 222 A.D.2d 792 [3d Dept 1995] [finding the issues were identical, i.e., the validity of the third amendment]; Williams, 211 A.D.2d at 597 [finding the issues a......
  • New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp.
    • United States
    • New York Court of Appeals
    • April 2, 1996
    ...PARTNERSHIP, Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Respondent. Court of Appeals of New York. April 2, 1996. Reported below: 222 A.D.2d 792, 634 N.Y.S.2d Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court's order denyi......

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