State v. Long Island Lighting Co.

• Decision Date: 07 August 1985
• Citation: 493 N.Y.S.2d 255,129 Misc.2d 371
• Parties: STATE of New York and New York State Department of Transportation, Plaintiffs, v. LONG ISLAND LIGHTING COMPANY, Defendant.
• Court: New York County Court

Page 255

493 N.Y.S.2d 255

129 Misc.2d 371

STATE of New York and New York State Department of Transportation, Plaintiffs, v. LONG ISLAND LIGHTING COMPANY, Defendant.

Nassau County Court.

Aug. 7, 1985.

Robert Abrams, Atty. Gen., Albany, for plaintiffs.

Edward M. Barrett, Hicksville, for defendant.

MEMORANDUM

ALLAN L. WINICK, Judge.

There are two motions before this Court, one, by defendant seeks an order dismissing the complaint and directing that summary judgment be entered in favor of defendant and against plaintiffs. The second is a cross motion by plaintiffs seeking leave to amend their complaint.

HISTORY OF THE CASE

The above-captioned matter was commenced by service of the summons and complaint on September 17, 1984. Issue was joined on October 23, 1984 by service of a verified answer. Both sides conducted discovery between October 23, 1984 and February 27, 1985, the date plaintiff served a verified supplemental bill of particulars. Defendant's notice of motion to dismiss the complaint was served on April 11, 1985. The plaintiffs' notice of cross motion dated May 15, 1985 and the amendment to the verified supplemental bill of particulars appear to have been accepted by "R.O. Donohue" on behalf of defendant. The "acceptance" is not dated. Both parties have submitted memoranda in support of their respective positions as well as in opposition to the other's position.

FACTS

It is uncontroverted that defendant's power lines fell on to plaintiffs' property causing the closing of the Meadowbrook Parkway at or near the intersection of Babylon Turnpike in Hempstead, New York. The parkway was closed at approximately 11:30 A.M. on March 2, 1983 until some undisclosed hour on March 3, 1983. Plaintiffs claim that defendant is liable for the costs plaintiff incurred for labor ($3,660.12), and equipment ($1,603.06), utilized in diverting traffic from the parkway in the vicinity of the fallen power lines.

Plaintiffs claim that as a result of defendant's negligence plaintiffs were forced to provide maintenance forces to barricade entrances, place detours and maintain traffic. The services provided by the plaintiffs, were in addition to the traffic control provided by the State police.

Plaintiffs fail to set forth any facts to support their contention that they "abated a known hazardous condition" on their property. Quite to the contrary, it appears that defendant was responsible for correcting the condition and did so, promptly and without assistance from plaintiffs. Indeed, plaintiff's personnel was assigned to assist State police in closing down the parkway. (See plaintiff's inter-office memorandum dated February 4, 1985 attached as defendant's Exhibit F.)

There are no reported injuries or damage to the road. Plaintiff's only damages are the costs incurred for labor and equipment for support personnel.

CONCLUSIONS OF LAW

It is a well-established principle that leave to amend should be freely given (CPLR 3025[b] ). Recent trends, however, have narrowed that principle where the claim to be added is patently without merit. (GMAC v. Shickler, 96 A.D.2d 926, 466 N.Y.S.2d 369, [2d Dept., 1983].) A pleading which is devoid of merit should not be allowed. (Walter v. Bauer, 88 A.D.2d 787, 451 N.Y.S.2d 533 [4th Dept., 1982]; Taylor v. Taylor, 84 A.D.2d 947, 446 N.Y.S.2d 714 [4th Dept.1981]; Boccio v. Aspin Trucking Corp., 93 A.D.2d 983, 461 N.Y.S.2d 661 [4th Dept., 1983].) "It is no longer tolerable to grant a motion to amend without passing on the validity of the cause of action as amended." (East Asiatic Co. v. Corash, 34 A.D.2d 432, 312 N.Y.S.2d 311 [1st Dept., 1970].) "When a substantial question is raised as to the sufficiency or meritoriousness of a proposed pleading or matter contained therein, that such question should be resolved at the threshold in order to obviate the possibility of needless time consuming litigation." (Sharapata v. Islip, 82 A.D.2d 350, 441 N.Y.S.2d 275, 282, affd. 56 N.Y.2d 332, 452 N.Y.S.2d 347, 437 N.E.2d 1104 [1982].)

This Court has examined the proposed amended complaint and finds that it is without merit. No provision should be implemented by decisional law so as to establish a cause of action and a right of recovery not contemplated by the legislature. (Deso v. Albany Ladder Co., 26 A.D.2d 182, 185, 271 N.Y.S.2d 823 [3d Dept., 1966].) Plaintiffs are asking this Court to do just that by their demand for recovery of the costs incurred for labor and equipment.

The general rule is that public expenditures made in the performance of governmental functions are not recoverable. (Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1 [1984].) There is no common law right to recover nor is there a statutory authority allowing recovery for the labor and equipment provided by the state in connection with the closing of the parkway. The plaintiff may not recover damages for undertaking its duty to ensure the safety of the travelling public. That duty is separate and distinct from the landowner's duty to abate a known dangerous condition existing on its property. (Drake v. State, 97 Misc.2d 1015, 416 N.Y.S.2d 734, affd. 75 A.D.2d 1016, 432 N.Y.S.2d 676 [4th Dept., 1980].) Plaintiffs' reliance on Drake is misplaced. Drake imposed liability on the state for breach of the duty of care, and for the breach of its duty to maintain its highways in a reasonably safe condition. There are no allegations herein that the state breached those duties.

This Court accepts as true the plaintiffs' contention that in addition to its governmental functions plaintiffs can also act as landowners. This Court does not, however, accept as true the notion that plaintiff was acting as a landowner in the case at bar. Plaintiffs performed the very tasks intended by the legislature. They exercised [their] functions, powers and duties relating to traffic regulation and control. (Transportation Law § 14.) Control of traffic is a matter within the police power since it relates to the health and safety of the public. (Tornado v. Town Board of Oyster Bay, 187 N.Y.S.2d 794 [Nassau County, 1959].) Public safety, public health and public welfare are all legitimate objects of police power and are broad and inclusive. (Yonkers v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112, 335 N.E.2d 327 [1975].) Police "power is a power of government inherent in sovereignty that is to be exercised for the public interest and for the public good." (American Consumer Industries v. City of New York, 28 A.D.2d 38, 281 N.Y.S.2d 467 [1st Dept., 1967].) The power to regulate and control the use of public roads and highways is primarily the exclusive perogative of the states. (People v. Bielmeyer, 54 Misc.2d 466, 282 N.Y.S.2d 797 [Buffalo, 1967].)

Inasmuch as the plaintiffs' assigned personnel to assist the State police in controlling traffic, this Court finds no reason to depart from the aforementioned general rule. Prohibiting recovery for public expenditures made in the performance of governmental functions "is grounded in considerations of public policy." (Koch v. Consolidated Edison Co. of New York, Inc., supra.) Nothing in the somewhat closer relationship between Long Island Lighting Co. and plaintiffs warrants departure from that rule (Koch v. Consolidated Edison Co. of New York, Inc., supra ).

For the reasons set forth in Koch, the statutory exceptions to the general rule regarding public expenditures are inapplicable. With regard to the statutes cited by plaintiffs, this Court finds that they too are inapplicable for the reasons discussed herein.

For example, section 320 of the Highway Law provides for treble damages against "whosoever shall injure any highway or bridge maintained at the public expense." Plaintiffs do not allege injury to a highway or bridge and, in fact, there was no such injury.

Section 65(1) of the Public Service Law requires that gas and electric corporations and municipalities provide safe and adequate service, and that they impose just and reasonable charges, and further, that they do not discriminate or give unreasonable preference in administering these services. No proof of a violation of that section is set forth in plaintiffs' papers.

Electric corporations must furnish, place, construct, operate, maintain and replace when necessary all overhead electric lines and service connections at their own expense. (16 NYCRR 98.) The proof establishes that defendant did replace the overhead lines at its own expense in compliance with the regulation.

Standardized traffic control devices must be made available when any work is performed within the highway boundary, either public or private, which would interfere with traffic using the roadway. (17 NYCRR 350-355.) The traffic control devices shall be available prior to the beginning of maintenance or construction operations and...