New York Telephone Co. v. City of New York

• Decision Date: 22 August 1983
• Citation: 466 N.Y.S.2d 56,95 A.D.2d 282
• Parties: NEW YORK TELEPHONE COMPANY, et al., Appellants, v. The CITY OF NEW YORK, Defendant third-party Plaintiff-Respondent, Frank Mascali Construction Corp., et al., etc., a joint venture, Defendants-Respondents; Donald E. Hernly, et al., third-party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 56

466 N.Y.S.2d 56

95 A.D.2d 282

NEW YORK TELEPHONE COMPANY, et al., Appellants, v. The CITY OF NEW YORK, Defendant third-party Plaintiff-Respondent,

Frank Mascali Construction Corp., et al., etc., a joint

venture, Defendants-Respondents;

Donald E. Hernly, et al., third-party Defendants-Respondents.

Supreme Court, Appellate Division,

Second Department.

Aug. 22, 1983.

Harold S. Levy, New York City (Lewis Trippett, New York City, of counsel), for appellant New York Tel. Co.

Ernest J. Williams, New York City (Joseph J. Klem and Sheila Solomon Rosenrauch, New York City, of counsel), for appellant Consolidated Edison Co. of New York, Inc.

Cullen & Dykman, Brooklyn (Cynthia Boyer Okrent, Brooklyn, of counsel), for appellant Brooklyn Union Gas Co.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Francis F. Caputo and

Trudi Mara Schleifer, New York City, of counsel), for defendant third-party plaintiff-respondent.

Goetz & Fitzpatrick, P.C., New York City (Gerald E. Fitzpatrick, New York City, of counsel), for defendants-respondents.

Hart & Hume, New York City (Lester Esterman and Jack Babchik, New York City, of counsel), for third-party defendant-respondent Andrews & Clark.

Before MOLLEN, P.J., and GIBBONS, BRACKEN and NIEHOFF, JJ.

NIEHOFF, Justice.

As part of its pollution control efforts, the City of New York undertook to construct a sewer in Brooklyn, and employed three contractors (the joint venture) to build it. Before construction began, the New York Telephone Company, the Consolidated Edison Company of New York, Inc., and the Brooklyn Union Gas Company were directed to remove their underground facilities from a certain portion of Van Brunt Street in Brooklyn. After they complied, construction of the project commenced on that street. Some time later, a building collapsed adjacent to the project site, and construction was brought to a halt.

Following the accident, the city reassessed the project and, after further review, decided not to continue construction on Van Brunt Street. That decision was based upon the city's unwillingness to undertake the task of underpinning and supporting buildings along that street. Instead, the city chose to reroute the sewer onto Imlay Street and, as a consequence, the utilities were directed to remove their underground facilities from that street. They did so and, in the instant action, they seek to recover the cost of the earlier removal of their facilities from Van Brunt Street. Their complaints as against both the city and the joint venture were dismissed, and the utilities now appeal.

With respect to the joint venture, dismissal was plainly proper since there was no showing that the joint venture owed a duty to the utilities. However, the remaining and more difficult question is whether the utilities' complaints state a valid cause of action against the city for expenses incurred in the removal of their facilities from Van Brunt Street. We turn to that question.

The gravamen of each of the complaints is that the city, its agents, servants and/or employees acted in a careless, reckless and negligent manner in failing to properly study, examine, investigate and select a site suitable for the installation of a sewer prior to ordering the removal of the utilities' facilities from Van Brunt Street.

It is settled that a utility company must remove its facilities from a public street and relocate them at its own expense "whenever the public health, safety or convenience requires the change to be made" (Matter of Consolidated Edison Co. of N.Y. v. Lindsay, 24 N.Y.2d 309, 316, 300 N.Y.S.2d 321, 248 N.E.2d 150, quoting Transit Comm. v. Long Isl. R.R. Co., 253 N.Y. 345, 351, 352, 171 N.E. 565; see, also, Rochester Tel. Corp. v. Village of Fairport, 84 A.D.2d 455, 456, 446 N.Y.S.2d 823 [SIMONS, J.] ). Moreover, the statute under which the removal was ordered provides that, whenever a sewer is to be constructed in any street in which a utility's facilities are laid, the contractors must give notice to the utility and, having received such notice, the utility "shall * * * remove or otherwise protect and replace their pipes, mains and conduits, and all fixtures and appliances connected therewith and attached thereto, where necessary, under the direction of the Commissioner" (Administrative Code of City of New York, § 683a4-17.0, par. b). Thus, a utility must remove its facilities at its own expense where such removal is necessary to permit construction which has as its purpose the advancement of the public health, safety or convenience. In contrast, where removal is requested, for example, merely to provide "an amenity for beautification of a single-family residential area of the community", the utility is entitled to compensation (see Rochester Tel. Corp. v. Village of Fairport, supra, p. 459, 446 N.Y.S.2d 823).

In the case at bar, it is undisputed that the sewer project was properly undertaken in furtherance of the public health, safety and convenience. Moreover, it is clear that removal of the utilities' underground facilities was necessary to permit the construction of the sewer project to proceed as originally planned. Nevertheless, the utilities claim that they are entitled to compensation essentially because, in making the initial selection of Van Brunt Street as the construction site, the city acted negligently. While we are unwilling to hold that the city has no obligation whatsoever to the utilities and that there are no circumstances under which the city can be liable when it orders a relocation of utilities' facilities, we decline to adopt the ordinary negligence standard proposed in the utilities' complaints.

The utilities rely on several cases which permit recovery in negligence against a municipality upon proof that it adopted a plan or design which either was evolved without adequate study or which lacked a reasonable basis. However, those cases are distinguishable, for they involved injury to plaintiffs who were strangers to the projects and had no connection with the municipality (see, e.g., Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 [plaintiff injured in car accident at intersection controlled by lights designed by municipality]; Gutelle v. City of New York, 55 N.Y.2d 794, 447 N.Y.S.2d 422, 432 N.E.2d 124 [plaintiff injured in car accident when vehicle struck abutment maintained by city]; Sipala v. Town of Huntington, 20 A.D.2d 559, 245 N.Y.S.2d 55, affd. 15 N.Y.2d 868, 258 N.Y.S.2d 410...