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MATTER CONSOLIDATED EDISON COMPANY NEW YORK v. JOHN V. LINDSAY ET AL. (07/16/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT Nos. 13373, 13374 1968.NY.42661 <http://www.versuslaw.com>; 292 N.Y.S.2d 12; 30 A.D.2d 392 July 16, 1968 IN THE MATTER OF CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., RESPONDENT,v.JOHN V. LINDSAY ET AL., CONSTITUTING THE BOARD OF ESTIMATE OF THE CITY OF NEW YORK, ET AL., APPELLANTS. IN THE MATTER OF THE CITY OF NEW YORK, RESPONDENT, RELATIVE TO ACQUIRING TITLE TO CERTAIN REAL PROPERTY BOUNDED BY UNION AVENUE AND OTHER STREETS, AS A SITE FOR PUBLIC SCHOOL 161, IN THE BOROUGH OF THE BRONX. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., APPELLANT Appeal, in the first above-entitled proceeding, from a judgment of the Supreme Court at Special Term (Irving L. Levey, J.), entered June 1, 1967 in New York County, granting the petition in a proceeding under article 78 of the CPLR for a judgment compelling appellants to institute a street closing condemnation proceeding. Morris Einhorn of counsel (Morris Handel with him on the brief; J. Lee Rankin, Corporation Counsel), for appellants and respondent. Joy Tannian of counsel (John M. Keegan, attorney), for respondent and appellant. Stevens, J. P. Eager, Steuer and Macken, JJ., concur with Stevens, J. P.; Tilzer J., dissents in opinions. Author: Stevens


Appeal, in the first above-entitled proceeding, from a judgment of the Supreme Court at Special Term (Irving L. Levey, J.), entered June 1, 1967 in New York County, granting the petition in a proceeding under article 78 of the CPLR for a judgment compelling appellants to institute a street closing condemnation proceeding.

Stevens, J. P. Eager, Steuer and Macken, JJ., concur with Stevens, J. P.; Tilzer J., dissents in opinions.

Author: Stevens

 These appeals, while factually distinguishable, involve a common question of law and for convenience will be discussed together.

With respect to Appeal No. 13373, on or about November 2, 1964, an order was entered condemning certain real property under title B of chapter 15 of the Administrative Code of the City of New York for a contemplated urban renewal project. The land so taken involved the closing or discontinuance of certain named streets. The petitioner, Consolidated Edison Company of New York, Inc. (Con Ed), by order to show cause instituted an article 78 proceeding in the nature of mandamus to compel respondents-appellants (hereafter City) to perform certain duties allegedly enjoined upon City by virtue of title E of chapter 15 of the Administrative Code of the City of New York (the Code). Con Ed alleged it was the owner of certain franchises in the streets and area taken and that there had been a failure to institute the requisite statutory compensation proceeding. Con Ed had not received any order directing removal of its structures.

In Appeal No. 13373 City appeals from an order entered June 1, 1967, denying its cross motion to dismiss the petition pursuant to CPLR 7804 (subd. [f]) (that the petition is insufficient as a matter of law), and which granted petitioner's application and directed City to comply with the mandate of subdivision 4 of section E15-4.0, and with the mandate of title E of chapter 15 of the Code by instituting a proceeding to determine compensation justly to be made to owners of realty affected by the closing of certain named streets. We note although City in its motion papers did not request leave to answer in the event its motion was denied, yet such permission should have been granted by reason of the mandatory language of CPLR 7804 (subd. [f]) under which the motion was made. However, we may and do take judicial notice of the necessary facts as set forth in official resolutions and official proceedings.

For reasons hereinafter stated the order appealed from should be affirmed.

In Appeal No. 13374 Con Ed appeals from an order of possession and judgment entered April 24, 1967, which granted City's motion to direct the removal of Con Ed's facilities from the bed of a portion of East 151st Street, Bronx, and which denied Con Ed's cross motion made pursuant to article 78 of the CPLR for a judgment directing petitioner City to complete a street condemnation proceeding pursuant to title E of chapter 15 of the Code. The realty here condemned, including the closing of a portion of East 151st Street, was for the purpose of constructing a public school, and the proceeding by City was also taken pursuant to title B of chapter 15 of the Code. Prior to the instant proceeding Con Ed had not been served with any notice or document relating to the relief sought by the City.

Both appeals involve the closing or discontinuance of a street or streets for a public purpose. In each instance Con Ed possessed a franchise pursuant to which it owned and operated certain utility facilities in the streets closed.

The question common to both appeals is whether a proceeding under title B of chapter 15 is sufficient to extinguish rights of owners of real property affected by a street closing in condemnation. All references hereafter are to chapter 15 of the Code unless otherwise indicated.

Title E of chapter 15 of the Code, entitled "Street Closing Condemnation Procedure" defines "owner" as a "person having an estate, interest or easement or lien, charge or encumbrance on any real property affected by proceedings under this title." (§ E15-1.0, subd. 3). Real property is defined to include surface and subsurface structures in closed streets, easements, corporeal and incorporeal hereditaments, franchises, legal or equitable right, etc., in lands (subd. 5). Clearly Con Ed has status as an owner affected.

City has full authority to close or discontinue any street in whole or in part "as it may be deemed necessary" in order to more effectively secure and preserve the "regularity and uniformity of the streets therein, or where other public necessity requires the closing" (Code, § E15-3.0). Such closing shall be effected as a capital project. "Compensation or recompense shall be made" to the owners of the real property affected or damaged by the closing (§ E15-3.0, subd. b).

Title B of chapter 15 of the Code is entitled "Consolidated Condemnation Procedure." The definition of "real property" under this title parallels somewhat that under title E, but makes no reference to "surface or subsurface structures within closed streets." As under title E, a proceeding under title B is a capital project proceeding (Code, § B15-1.0, subd. 8). The provisions of title B "shall apply to all capital project proceedings instituted within the city unless the context or subjectmatter otherwise requires, but shall not apply to street closing proceedings, except as provided in section E15-29.0 of the code" (Code, § B15-2.0; emphasis added). Section E15-29.0 dealing with the purchase of awards has no relevancy here and needs no discussion.

Since taxpayers' money is involved both in the construction of the urban renewal project and the public school it may reasonably be concluded that such projects would not be undertaken unless the necessity therefor was both public and evident. Included in the land condemned for the capital project are certain public streets which were closed. In such streets lay "real property" owned by Con Ed (see Code, § E15-1.0, subd. 5). If a proceeding under title B is sufficient as well to extinguish the rights of owners of real property affected by street closings in condemnation, then the owners of such property are deprived of the same without any opportunity to be heard on the issue of compensation or recompense. Title E in its application would not embrace "public necessity", as therein provided, but would effectively be restricted to the more limited purpose "to more effectually secure and preserve the regularity and uniformity of the streets" (Code, § E15-3.0). This could hardly have been intended in light of the general purpose to provide a method whereby in a taking resulting from a street closing, the owner affected should be given opportunity to make claim for compensation to which he might feel entitled. We have to assume that every provision of the Code was intended for some useful purpose (see McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 144). It should be noted also that street closings are specifically excluded from the operation of the provisions of the Consolidated Condemnation Procedure set forth in title B of chapter 15. Rights of owners affected by a street closing, though embraced within a larger area of condemnation, should not be deemed extinguished thereby and such owners foreclosed from making appropriate claim. Nor did the proceedings taken by City assume to appropriate the easements and franchises of Con Ed in the streets involved in the condemnation, therefore Con Ed had no opportunity to advance its claim for compensation (cf. Matter of City of New York (Fort Greene Houses), 291 N. Y. 788), and its right to compensation, if any, and in what amount, should not now be determined.

In Matter of City of New York (Gillen Place) (304 N. Y. 215) a proceeding under title E of chapter 15 of the Code, where the City was closing a street and appropriating the property for the building of a bus garage, a proprietary function, the court noted that when the change is required "in behalf of municipalities exercising a proprietary instead of a governmental function the common-law rule that utilities maintain their installations in public streets subject to the risk of relocating them at their own expense when public necessity so requires, does not apply" (p. 221). The court made this observation "assuming, however, that the street closing proceeding was instituted to secure uniformity of the city street system, in the exercise of governmental power, still by reason of the statute claimants are not bound by the common-law rule" (p. 221). In the cases on appeal, as in the Gillen case (supra), the estate created by Con Ed's special franchise consists of its tangible property plus the intangible right. And such estate "is an incorporeal hereditament, in the nature of an easement in the street wherein the installment is made" (p. 223). Under the statute if Con Ed's real property (§ E15-1.0, subd. 5) is affected or damaged by reason of the ...


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