| City of Utica v New York Susquehanna & W. Ry. Corp. |
| 2007 NY Slip Op 10213 [46 AD3d 1355] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| City of Utica, Appellant, v New York Susquehanna and WesternRailway Corp. et al., Respondents. |
—[*1] Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard of counsel), fordefendant-respondent-respondent New York Susquehanna and Western Railway Corp. Kernan and Kernan P.C., Utica (Kevin G. Martin of counsel), fordefendant-respondent-respondent Oneida County Industrial Development Corporation. Couch White, LLP, Albany (James J. Barriere of counsel), fordefendant-respondent-respondent New York Regional Interconnect, Inc.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, OneidaCounty (James C. Tormey, J.), entered January 26, 2007 in a CPLR article 78 proceeding anddeclaratory judgment action. The judgment dismissed the amended petition and complaint.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Plaintiff-petitioner (petitioner) commenced this hybrid CPLR article 78proceeding and declaratory judgment action seeking a determination that the lease agreementbetween defendants-respondents New York Susquehanna and Western Railway Corp. (NYS &W) and New York Regional Interconnect, Inc. is invalid as against public policy and seeking toenjoin the construction of a power transmission line on real property owned, used or controlledby NYS & W. Petitioner also sought a judgment enforcing the terms of a payment in lieu of taxes(PILOT) agreement between defendant-respondent Oneida County Industrial DevelopmentCorporation (IDC) and NYS & W and prohibiting the IDC from consenting to NYS & W's use ofits property for construction of power lines through the City of Utica. We note at the outset that adeclaratory judgment action is not an appropriate procedural vehicle for the ultimate reliefsought, i.e., a determination concerning the validity of the lease agreement, and thus this is [*2]properly only a proceeding pursuant to CPLR article 78.
As Supreme Court noted, the application to build the transmission line was pending beforethe New York State Public Service Commission (PSC), which has exclusive authority to resolveall matters concerning the construction of major power lines in one proceeding. Because the PSChas not yet issued a determination allowing the power line to run through petitioner's property,the court properly concluded that there was no controversy and dismissed the amended petitionon the ground that the matter was not ripe for review (see Church of St. Paul & St. Andrew vBarwick, 67 NY2d 510, 520 [1986], cert denied 479 US 985 [1986]). We note inaddition that petitioner has conceded in its brief on appeal that any causes of action with respectto the PILOT agreement are moot, inasmuch as that agreement by its terms has terminated.Present—Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.