Opinion
1565, 1565-A
July 10, 2003.
Judgment, Supreme Court, New York County (Faviola Soto, J.), entered March 31, 2003, dismissing the complaint in an action seeking, inter alia, to enjoin defendant Consolidated Edison Company of New York, Inc. (Con Ed) from proceeding with the construction of an electric substation until it had satisfied certain environmental impact requirements, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 27, 2003, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Michael David Zarin, for plaintiffs-appellants.
Robert S. Davis Scott Shorr, for defendants-respondents.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Williams, JJ.
The court correctly held that Con Ed is not constrained from constructing the substation by the "noxious use" provision of the restrictive covenant that applies to the underlying property. We need not reach the issue of whether plaintiffs, a group of concerned neighborhood residents, have standing to assert rights as third-party beneficiaries under the covenant; plaintiffs merely assert, in a conclusory fashion, that they have such rights from their supposed status as "neighboring landowners" (compare Nature Conservancy v. Congel, 253 A.D.2d 248, 253 [a covenant specifically stating that it is "for the benefit of and enforceable by all parties owning property adjoining the premises hereby conveyed" is enforceable]). Given that covenants restricting use are strictly construed against those seeking to enforce them (Witter v. Taggart, 78 N.Y.2d 234, 237) and, in view of the doctrine of ejusdem generis, the IAS court correctly held that a 21st-century electric substation is not comparable to the 19th-century trades and businesses specifically enumerated in the covenant, and therefore does not constitute a "noxious or dangerous" use within the meaning of the covenant.
We reject plaintiffs' suggestion that to the extent that Con Ed has reserved its right to exercise its statutory condemnation powers, an environmental review under SEQRA has been triggered. Based on definitions contained in Environmental Conservation Law § 8-0105, a private corporation like Con Ed is not an "agency" whose actions fall under SEQRA (see Matter of Brady v. Genesee Wyoming R.R. Co., 225 A.D.2d 1024).
We have considered plaintiffs' remaining contentions that Con Ed was required to apply for a noise variance for the substation and that it would be required to obtain a certification of necessity from the Public Service Commission in the event that it were to exercise its condemnation powers and find them to be without merit.
Motion seeking injunctive relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.