31 A.D.2d 708 | N.Y. App. Div. | 1968
This is an action on submitted facts commenced pursuant to CPLR 3222 to determine whether the defendant may require the plaintiff to place its electric lines and facilities underground within an urban renewal area located in the -.City of Kingston. Shortly after an urban renewal plan was adopted by the City of Kingston, the defendant and the city entered into a co-operation agreement pertaining to a project for redevelopment, concerning which the defendant has directed that plaintiff’s utility lines and facilities be placed underground at the redevelopment site. Plaintiff disputes defendant’s right to order its utility lines be placed underground, urging defendant’s lack of authority to so do. In order to facilitate the completion of the project, the parties additionally stipulated that the utilities be placed underground “and the Defendant has agreed that the Plaintiff is entitled to recover $84,872 * * * if the Court determines that the Defendant
Gibson, P. J., Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam. Reynolds and Staley, Jr., JJ., dissent and vote for judgment for the defendant in a memorandum by Reynolds, J. Reynolds, J. (dissenting). It is not disputed that the plaintiff was obligated to remove and relocate its facilities overhead at its own expense (New York Tel. Co. v. City of Binghamton, 18 N Y 2d 152; Transit Comm. v. Long Is. R. R. Co., 253 N. Y. 345, 351). The question is whether here it can be compelled by the defendant to relocate them underground rather than placing them overhead at the plaintiff’s added expense of $84,872. It is conceded by the plaintiff that the City of Kingston, which incidently will bear the cost of the installation if plaintiff prevails, could have ordered the underground installation here involved. While admittedly there is no express authority in articles 15 and XV-A of the General Municipal Law .that would allow the defendant, as opposed to the City, to adopt the resolution in question, we find that implied authority permitting such a resolution existed from the broad and sweeping purposes and powers included in such articles (General Municipal Law, §§ 501, 551, 553 [subd. 2], 554, 558; New York City Tunnel Auth. v. Consolidated Edison Co., 295 N. Y.