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TILCON MINERALS, INC. v. ORANGE & ROCKLAND UTILS.

March 4, 1994

TILCON MINERALS, INC., Plaintiff,
v.
ORANGE AND ROCKLAND UTILITIES, INC., Defendant. ORANGE AND ROCKLAND UTILITIES, INC., Plaintiff, v. TILCON MINERALS, INC., Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 These mirror-image diversity of citizenship suits revolve around a contract entered into on December 9, 1985 (the "1985 agreement") under which Orange and Rockland Utilities, Inc. ("Orange") purchased from Tilcon Minerals, Inc. ("Tilcon") more than 200 acres (the "property") at Stony Brook, New York. The 1985 agreement contained provisions requiring that Orange pay the cost of relocating a rock crushing plant on the property sold at locations set forth on Exhibit E to the agreement, subject to more detailed provisions concerning the site of the relocation.

 The parties thereafter sued each other seeking declaratory judgment and other relief concerning disagreements in regard to where the 1985 agreement authorizes the plant to be relocated at Orange's expense and subordinate related disputes. Tilcon moves for summary judgment in its favor in both 93 Civ 6132 and 93 Civ 7026 declaring that its interpretation of the agreement is correct and that various other claims of Orange lack merit. Orange opposes the motions on grounds that genuine issues of material fact exist.

 Tilcon's motions are denied without prejudice on the ground that adjudication of any of the issues raised by either party is premature until the amount due Tilcon from Orange because of the cost of relocation of Tilcon's rock crushing plant on its property can be determined.

 II

 Perusal of the agreement and of the contentions of the parties indicates that Exhibit E to the 1985 agreement is a binding part of the agreement and appears to authorize Tilcon to relocate at the site it now wishes to utilize. Orange raises numerous objections to this conclusion which appear to be of questionable merit, but which need not be adjudicated at this time.

 There exists, however, no current impediment to Tilcon relocating in whatever manner it deems proper on its own property and submitting a bill to Orange for such amounts as may then be due under the 1985 agreement. Moreover, just as controversy has arisen concerning the relocation sites described in the 1985 agreement, equally nettlesome disputes can readily arise concerning implementation of any judicial description of the relocation sites set forth in the 1985 agreement or how the relocation of Tilcon's rock crushing plant should be carried out. *fn1"

 Neither party contends that the physical location of the new site of the plant will in itself cause harm to either party. Instead, the parties' primary, central dispute grows out of the differential costs involved in differing aspects of relocation including siting. The financial consequences of the choice cannot be known until the relocation occurs, given the number of unforeseeable factors which cannot be fixed in advance and are inevitable in a construction job of this magnitude.

 A declaratory judgment concerning what rock crushing plant relocation site is authorized by the 1985 agreement would not preclude Tilcon from siting that plant or any of its facilities elsewhere on property it owns (and hence, logically, from siting elsewhere in the first instance), but would only protect Orange from having to pay any additional cost resulting from the choice. The additional cost would be the only unfavorable consequence to Orange of any infraction of the siting provisions of the agreement, and one which can readily be remedied by reducing the payment required at the time due.

 A declaratory judgment is appropriate where it will settle the legal relations between the parties. Continental Casualty Co v. Coastal Savings Bank, 977 F.2d 734 (2d Cir. 1992). An advance ruling on what siting would be correct would not avoid further litigation over how much Orange should be required to pay. Instead, a declaratory ruling at this point would almost certainly merely spawn further litigation over (a) its physical implementation, and (b) whether or not the cost ultimately billed by Tilcon was reasonable or correct under the declaratory judgment.

 Both combatants in the current dispute have adequate monetary remedies at law in lieu of a declaratory judgment which has the same effect if effective in this instance as an injunction; although injunctive relief may have advantages in certain circumstances, there appears to be no reason why such monetary remedies should not be required to be pursued in this instance. There has been no showing of irreparable injury which would result from treating this dispute as one resolvable through monetary relief. See Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979) (preliminary ...


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