Opinion
July 10, 1980
Appeal from the Oneida Supreme Court.
Present — Dillon, P.J., Cardamone, Doerr, Witmer and Moule, JJ.
Judgment unanimously affirmed, without costs. Memorandum: The only reasonable interpretation which may be placed upon the language of subdivision 2 of section 15 Transp. Corp. of the Transportation Corporations Law is that which is enunciated in Matter of Rivera v. Berger ( 89 Misc.2d 586, 593-594, affd 60 A.D.2d 605, mot for lv to app den 44 N.Y.2d 642, app dsmd 44 N.Y.2d 731). For that reason and because we agree with Special Term here that the mandated advances are recoupable (see Social Services Law, § 350-j, subd 2, pars [e], [f]; compare Matter of Jones v. Berman, 37 N.Y.2d 42), the judgment should be affirmed. We do not agree, however, with the dicta expressed in Rivera that the due process rights of the utility would be impaired if subdivision 2 of section 15 Transp. Corp. of the Transportation Corporations Law were construed to require the continuation of the utility's services on the sole premise of the assurance of prospective payment (cf. Transportation Corporations Law, § 12). In our view, that construction of the statute would present no constitutional impediment and thus the Legislature is not proscribed from legislating such intent in appropriate language.