Port Auth. of N.Y. & N.J. v. Brooklyn Union Gas Co.

179 A.D.3d 1106

119 N.Y.S.3d 191

PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent,

v.BROOKLYN UNION GAS COMPANY, et al., Appellants, et al., Defendant.

2017–01123

Index No. 13200/05

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 6, 2019

January 29, 2020

John F. Hastings (Lynch Rowin LLP, New York, N.Y. [Marc Rowin ], of counsel), for appellants.

Sajaa S. Ahmed, New York, N.Y. (Juan M. Barragan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a consolidated action to recover damages for unjust enrichment, the defendants Brooklyn Union Gas Company and Keyspan Energy Delivery and/or Keyspan Corporation appeal, and the defendants AT & T Communications of New York, Inc., and AT & T Corp. separately appeal, from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered December 19, 2016. The order, insofar as appealed from, granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendants Brooklyn Union Gas Company and Keyspan Energy Delivery and/or Keyspan Corporation and the defendants AT & T Communications of New York, Inc., and AT & T Corp., and denied those defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendants Brooklyn Union Gas Company and Keyspan Energy Delivery and/or Keyspan Corporation and the defendants AT & T Communications of New York, Inc., and AT & T Corp. are denied, and those defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

In May 1996, the plaintiff approved the "AirTrain" construction project to connect John F. Kennedy International Airport to the Long Island Railroad and subway stations in Jamaica, Queens, and Howard Beach, Queens, via light rail. In connection therewith, the plaintiff entered into a contract with Air Rail Transit Consortium (hereinafter ARTC) for the design, construction, operation, and maintenance of the AirTrain project. The contract provided, inter alia, that if ARTC was required to relocate any existing utility as a result of the project, which relocation work could be performed by the utility owner itself, then any costs associated with said relocation work paid by ARTC would be compensated from a fund established by the contract and known as the "Maximum Contingency Amount" (hereinafter the contingency fund).

During the course of the AirTrain project, the defendants Brooklyn Union Gas Company and Keyspan Energy Delivery and/or Keyspan Corporation (hereinafter together the Keyspan defendants) and the defendants AT & T Communications of New York, Inc., and AT & T Corp. (hereinafter together the AT & T defendants) were required to relocate certain utility lines and facilities. The Keyspan defendants and the AT & T defendants submitted invoices for their relocation work to ARTC. ARTC paid the invoices and subsequently was reimbursed by the plaintiff from the contingency fund.

Several years after the payments were made and the project was completed, the plaintiff commenced separate actions against the Keyspan defendants and the AT & T defendants, alleging unjust enrichment and seeking recovery of the utility relocation payments. Following joinder of issue and consolidation of the actions, the Keyspan defendants and the AT & T defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against those defendants. In an order entered December 19, 2016, the Supreme Court, among other things, granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the Keyspan defendants and the AT & T defendants, and denied those defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. The Keyspan defendants and the AT & T defendants separately appeal.

As the plaintiff observes, utility owners have a common-law obligation to relocate their facilities and lines at their own expense when public health, safety, or convenience requires such relocation (see 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 ; Matter of Consolidated Edison Co. of N.Y. v. Lindsay, 24 N.Y.2d 309, 316–317, 300 N.Y.S.2d 321, 248 N.E.2d 150 ; Transit Commn. v. Long Is. R.R. Co., 253 N.Y. 345, 351, 171 N.E. 565 ). However, this common-law obligation may be altered by contract (see Lizza Indus. v. Long Is. Light. Co., 44 A.D.2d 681, 682, 353 N.Y.S.2d 804 ; New Rochelle Water Co. v. City of New Rochelle, 18 A.D.2d 922, 922, 238 N.Y.S.2d 169 ). Here, the Keyspan defendants and the AT & T defendants established that the plaintiff altered this common-law duty of those defendants by entering into a contract expressly providing that the relocation of utilities in connection with the AirTrain project could be performed by utility owners, and that any payments for such relocation would be made from the contingency fund.

The plaintiff seeks recovery pursuant to an unjust enrichment theory, but "[t]he theory of unjust enrichment lies as a quasi-contract claim. It is an obligation the law creates in the absence of any agreement" ( Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572, 807 N.Y.S.2d 583, 841 N.E.2d 742 ; see Pappas v. Tzolis, 20 N.Y.3d 228, 234, 958 N.Y.S.2d 656, 982 N.E.2d 576 ; Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 ). "The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi contract for events arising out of the same subject matter" ( Gargano v. Morey, 165 A.D.3d 889, 892, 86 N.Y.S.3d 595 ; see Pappas v. Tzolis, 20 N.Y.3d at 234, 958 N.Y.S.2d 656, 982 N.E.2d 576 ; Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d at 572, 807 N.Y.S.2d 583, 841 N.E.2d 742 ), and a third-party beneficiary of a contract...