Opinion
Index No. 908723-21 RJI No. 01-21-ST-1984
08-15-2022
WILLIAM H. BRENNAN, Petitioner, v. POWER AUTHORITY OF THE STATE OF NEW YORK, Respondent.
Aaron Mark Zimmerman, Esq. The Legal Team Attorneys for Petitioner Katherine A. Skeele, Esq. Holland & Knight LLP Attorneys for Respondent Power Authority of the State of New York
Unpublished Opinion
Aaron Mark Zimmerman, Esq. The Legal Team
Attorneys for Petitioner
Katherine A. Skeele, Esq. Holland & Knight LLP
Attorneys for Respondent Power Authority of the State of New York
JUDGMENT
JAMES H. FERREIRA, ACTING JUSTICE
In this CPLR article 78 proceeding, petitioner seeks relief in the nature of a writ of mandamus (see CPLR 7803 [1]). In the petition, petitioner alleges that he is a resident of the Village of Skaneateles (hereinafter the Village) and has purchased Preference Hydropower generated by respondent from the Village's Municipal Electric Department continuously since at least 2010.
Petitioner commenced this proceeding by filing a petition and proposed Order to Show Cause. The Court (O'Connor, J) executed the Order to Show Cause on October 13,2021. Among other things, the Court, in the Order to Show Cause, approved petitioner's request that the Village be considered a permissive party in this matter and directed that notice of these proceedings be provided to the Village. The Village appeared in this matter through counsel and, by stipulation dated November 4,2021, petitioner and the Village agreed to an extension of time for the Village to serve an answer until 30 days after respondent serves a responsive pleading or, if respondent makes a motion, until the motion is finally disposed of by this Court or the Appellate Division. To date, the Village has not filed any substantive papers in this matter.
Petitioner alleges that, pursuant to Public Authorities Law § 1005 (5)(f), respondent is required to make periodic revisions of its Preference Hydropower rates and that respondent has violated Public Authorities Law § 1005 (5)(f) by failing to revise those rates for 10 years, with the last rates being set in 2011. Petitioner seeks an order compelling respondent to immediately revise its Preference Hydropower rates on the basis of accurate cost data. Respondent opposes the petition and petitioner has filed a reply.
Petitioner filed a number of documents after this matter was fully submitted, including a document entitled "Plaintiffs-Petitioner's Written Summation" which contains arguments relating to this matter and a separate, related matter that was then pending before this Court. Petitioner has also filed updates in this matter pertaining to the pending appeal from the related matter. The Court declines to consider the submissions made by petitioner after this matter was fully submitted. The Court notes that, in the related matter, entitled Lawrence Sloane et al v Power Authority of the State of New York et al (Index No. 907592-20), the Court dismissed, as untimely, the plaintiffs' challenge to respondent's 2011 rate revision. The Court does not find that its determination of the instant matter would be impacted by any determination with respect to that appeal.
The writ o f mandamus is an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought'" (Matter of Johnson v Fischer, 104 A.D.3d 1004,1004-05 [3d Dept 2013], quoting Matter of Johnson v Corbitt, 87 A.D.3d 1214, 1215 [3d Dept 2011], Iv denied 18 N.Y.3d 802 [2011]; see Matter of Hunt v Annucci, 201 A.D.3d 1112,1113 [3d Dept 2022], Iv denied 38 N.Y.3d 907 [2022]). Public Authorities Law § 1005 (5) authorizes and directs respondent to sell hydroelectric power to municipalities and political subdivisions "at prices representing cost of generation, plus capital and operating charges, plus a fair cost of transmission, all as determined by the trustees, and subject to conditions which shall assure the resale of such power at the lowest possible price." Public Authorities Law § 1005 (5)(f) provides:
"Contracts for the sale, transmission and distribution of power generated by such projects shall provide for the effectuation of the foregoing policy and shall provide ... [p]eriodic revisions of the service and rates to consumers on the basis of accurate cost data obtained by such accounting methods and systems as shall be approved by
the trustees and in furtherance and effectuation of the policy declared in this sub-paragraph."
It has been held that "most of the directives in Public Authorities Law § 1005 (5) are discretionary and present nonjusticiable policy questions" (Matter of County of Westchester v Power Auth. of State of N.Y., 188 A.D.2d 432, 432 [1st Dept 1992], Iv denied 82 N.Y.2d 658 [1993]).
Upon review, the petition is dismissed. Petitioner's argument is that respondent is in violation of Public Authorities Law § 1005 (5)(f) because it has failed to revise its rates for over 10 years. However, Public Authorities Law § 1005 (5)(f) requires only that respondent make "periodic" revisions of hydropower rates, and there is nothing in the statute that requires that rates be revised pursuant to a specific timetable, within a certain period of time, upon tire occurrence of any event or under any specific circumstances. The statute, on its face, leaves it to respondent to determine the timing of its periodic rate revisions, and petitioner has failed to cite any authority for its position that respondent is required to revise its rates after 10 years have elapsed. As such, the Court finds that the timing of the periodic revisions is a matter that is within respondent's discretion to determine and that mandamus does not lie to compel respondent to conduct a rate revision (see Matter of Hunt v Annucci, 201 A.D.3d at 1113). Therefore, the Court finds the petition must be dismissed.
Accordingly, based upon the foregoing, it is hereby
ORDERED that the petition is dismissed.
The foregoing constitutes the Judgment of the Court.
SO ORDERED AND ADJUDGED.
James H. Ferreira Acting Justice
Papers Considered:
1. Petition, sworn to October 7, 2021;
2. Order to Show Cause, dated October 13, 2021;
3. Affirmation in Opposition by Katherine A. Skeele, Esq., dated November 8, 2021, with attached exhibits;
4. "Affirmation" in Opposition by Scott Tetenman, sworn to November 8, 2021;
5. Memorandum of Law in Opposition by Katherine A. Skeele, Esq., dated November 8, 2021; and
6. Reply Affirmation by Aaron Zimmerman, Esq., dated November 10, 2021.