City of New York v. Verizon New York, Inc.

Order, Supreme Court, New York County (Michael Stallman, J.), entered January 10, 2003, which, in an action by the City against public service corporations to recover penalties under Administrative Code of the City of New York § 19-150, insofar as appealed from, denied defendants’ motion to dismiss the complaint for failure to state a cause of action, affirmed, without costs.

This is an action by the City to recover penalties against defendant public service corporations pursuant to Administrative Code of the City of New York §§ 24-521 and 19-150. At issue here, inter alia, is defendants’ contention that section 24-521 does not apply to their above ground facilities, but only to those laid “in the street.” We find that this contention is not supported by the ordinance “ ‘in language which is clear and to the point’ ” (City of New York v Consolidated Edison Co., 274 AD2d 189, 192-193 [2000] [citation omitted], appeal and lv dismissed 96 NY2d 727 [2001]), and is inconsistent with a clear legislative intent that utilities protect their facilities during street repair projects (see Matter of Diamond Asphalt Corp. v Sander, 92 NY2d 244, 249 [1998]).

Under Administrative Code § 24-521 (a), “[w]henever any sewer, culvert, water main or pipe is to be constructed, altered or repaired in any street in which the pipes, mains or conduits of public service corporations are laid,” the contractor shall give written notice thereof to such public service corporations before breaking ground. Under Administrative Code § 24-521 (b), such notice requires any such public service corporation to protect or replace the “pipes, mains or conduits [that] are about to be disturbed” including “all fixtures and appliances connected therewith or attached thereto, where necessary.” As the motion court ruled, the wires defendants use presumably to transmit telephone communications and other data are thus encompassed by the ordinary meaning of the word “conduit,” which is defined not only as a “channel through which something (as a fluid) is conveyed,” but also “a pipe, tube, or tile for protecting electric wires or cables” and “a means of transmitting or distributing” (Merriam-Webster’s Collegiate Dictionary [10th ed]). Furthermore, defendants’ telephone poles clearly fit the statutory definition of “fixtures and appliances connected therewith or attached thereto [the wires],” which the ordinance also charges defendants with removing, protecting or replacing. Hence, if the thrust of the statutory policy is the protection of a public service corporation’s facilities during an excavation project and the statutory language covers not only the utility’s various “conduits,” but “all fixtures and appliances connected therewith or attached thereto,” which take myriad forms and may be above or below ground, then it is also clear that the statutory protection should not be limited merely to underground facilities in the absence of express statutory language to that effect. Tellingly, defendants articulate no cogent policy basis for distinguishing between above ground and underground facilities. Nor is defendants’ argument persuasive that the word “conduits” immediately follows the words “pipes” and “mains,” and that all three of these things are described as “laid” in the street. The rule of ejusdem generis “will not be applied where it contradicts the evident intent of the Legislature” (McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [b]).

Finally, dismissal of this complaint would have been inappropriate as a remedy for the alleged unnecessary expense defendants incurred in engaging the City’s contractor to perform defendants’ duties under the ordinance (see City of New York v Consolidated Edison Co., 114 AD2d 217, 223 [1986]). Concur—Buckley, P.J., Saxe, Williams and Gonzalez, JJ.