VAN TULCO INC v. New York Telephone Company, et al., Defendants-Appellants. (2009)

Orders, Supreme Court, New York County (Karen S. Smith, J.), entered April 17 and 22, 2008, which denied the respective motions by defendant public utilities for summary judgment, and, upon search of the record, granted partial summary judgment in plaintiff's favor on the issue of adequacy of notice triggering the statutory duty to “remove or protect” facilities interfering with a public works project, unanimously reversed, on the law, without costs, and the motions granted.   The Clerk is directed to enter judgment in favor of defendants-appellants public utilities dismissing the complaint as against them.

Plaintiff, a contractor retained by the City of New York in 1990 to rebuild a bridge in Long Island City, sought delay damages allegedly caused by the defendant public utility companies' failure to timely move a gas main and telephone conduits after receiving notice from plaintiff that those facilities were impeding progress.   While it is undisputed that public utilities have a longstanding common-law and statutory “obligation to move their facilities when they interfere with municipal work projects” (City of New York v. Verizon N.Y., Inc., 4 N.Y.3d 255, 258, 794 N.Y.S.2d 293, 827 N.E.2d 276 [2005] ), there is no basis for plaintiff's claim that it could unilaterally require defendants to move their facilities simply by giving notice of the project.   The common-law obligation (codified in Administrative Code § 19-143) requires public utilities, upon receipt of such notice from a contractor, to “remove or otherwise protect and replace their pipes, mains and conduits ․ where necessary, under the direction of the commissioner” of the New York City Department of Transportation.

Consistent with the statutory language, the practice at the time this project was undertaken was for the contractor and utility companies to negotiate the cost of the work, and only upon the City's issuance of a “work out” notice directing removal would the utility company be required to “immediately relocate” its facility (see generally Matter of General Contrs. Assn. of N.Y. v. Tormenta, 259 A.D.2d 177, 179-180, 696 N.Y.S.2d 155 [1999], lv. denied 95 N.Y.2d 754, 711 N.Y.S.2d 156, 733 N.E.2d 228 [2000] ).   In this case, since the utilities established there was never a determination that removal of their facilities was necessary, or any direction from the City requiring their removal, these defendants were entitled to summary judgment dismissing the complaint.