New York State Elec. & Gas Corp. v. State

• Decision Date: 03 August 1995
• Citation: 218 A.D.2d 868,630 N.Y.S.2d 412
• Court: New York Supreme Court — Appellate Division
• Parties: NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, v. STATE of New York, Respondent.

Page 412

630 N.Y.S.2d 412

218 A.D.2d 868

NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, v.STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Aug. 3, 1995.

Huber, Lawrence & Abell(Michael Guararra, of counsel), New York City, for appellant.

Dennis C. Vacco, Atty. Gen. (Daniel Smirlock, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeal from an order of the Court of Claims (Benza, J.), entered June 10, 1994, which, inter alia, granted the State's cross motion for summary judgment dismissing the claim.

Claimant, an electric and gas corporation, operates a hydroelectric power plant at Dam C-3 (hereinafter the dam), ¹ a dam and lock structure owned by the State.The dam is located on the Hudson River at the Town of Stillwater in Saratoga County.In 1922claimant's predecessor in interest and the State executed an agreement whereby, inter alia, the State agreed that the Department of Transportation would maintain the lock and the dam.In 1982the parties expressly reaffirmed that agreement, agreeing that the State would still be responsible for the maintenance and that claimant would be responsible for meeting any requirements imposed by the Federal Energy Regulatory Commission(hereinafter FERC) that exceeded what would be necessary for the operation of the dam, absent the presence of a hydroelectric plant.

A 1982"Evaluation of Existing Conditions and Rehabilitative Requirements" for the dam (hereinafter the evaluation) commissioned by the State and performed by an independent consulting firm concluded that the dam had "a marginal factor of safety against overturning and an unacceptable factor of safety against sliding".Although the evaluation further "concluded that the dam is not considered 'unsafe' and immediate action to increase stability is not required", it also stated that "[p]ost-tensioned anchorages were considered to be the most economical method for stabilization of the dam".FERC required that the dam be stabilized before it would grant claimant a license to operate its hydroelectric plant.Claimant demanded that the State take responsibility for stabilization of the dam and, when the State failed to do so, undertook the necessary work in 1988 and 1989.

Claimant thereafter commenced an action to, inter alia, recover the cost of the repairs on the dam from the State.Claimant's cause of action for unjust enrichment was dismissed and subsequently claimant moved for summary judgment on its breach of contract cause of action.The State then cross-moved for summary judgment dismissing the claim.The Court of Claims denied claimant's motion, granted the State's cross motion and dismissed the claim.Claimant has appealed.

The order dismissing the claim should be affirmed.The Court of Claims correctly concluded that there were no questions of fact to be determined at a trial and, therefore, rendered summary judgment in favor of the State(see, Ugarriza v. Schmieder, 46 N.Y.2d 471, 473, 414 N.Y.S.2d 304, 386 N.E.2d 1324;Stone v. Goodson, 8 N.Y.2d 8, 200 N.Y.S.2d 627, 167 N.E.2d 328).

The Court of Claims properly concluded that the only issue to be determined was whether the work had to be undertaken at the time claimant caused the work to be performed or whether it could be done at a later time....