Opinion
2306.
November 25, 2003.
Order, Supreme Court, New York County (Michael Stallman, J.), entered May 17, 2002, which, to the extent appealed from, in this action to recover penalties assessed for defendant Consolidated Edison's failure to perform utility interference work in accordance with the requirements of New York City Administrative Code § 24-521, granted plaintiff's motion for summary judgment and directed the Clerk to enter judgment in plaintiff's favor in the principal amount of $385,000, unanimously affirmed, without costs.
Suzanne K. Colt, for Plaintiff-Respondent.
Frank A. Lisi, for Defendant-Appellant.
Before: Mazzarelli, J.P., Saxe, Williams, Lerner, Marlow, JJ.
Plaintiff's Notices to Remove Obstructions were not arbitrary or capricious (see Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 231; City of New York v. Consolidated Edison Co. of New York, Inc., 114 A.D.2d 217, 223). Such notices were issued subsequent to the expiration of the three-month period requested by defendant Con Edison for relocation of its obstructing facilities and, evidently, in the absence of any request by defendant for an extension, and the delay in the affected municipal sewer project, located near an elementary school and necessitating extensive street excavation, would likely have been detrimental to the public welfare.
Defendant's arguments that plaintiff's notices were arbitrary and capricious do not raise triable issues of fact. Neither the common law nor Administrative Code § 24-521 required plaintiff to act as an arbitrator between its contractor and defendant or to permit defendant to relocate its facilities onto public land We reject defendant's argument that § 24-521 is limited to direct, as opposed to indirect, interferences (see City of New York v. Consolidated Edison Co. of New York, Inc., 274 A.D.2d 189, 192, appeal dismissed 96 N.Y.2d 727). Plaintiff's language makes no such distinction.
Defendant's argument that it did not receive adequate notice until September 15, 1999 of the penalties to which it was exposed for failing to timely remove the obstructions is unavailing. The references in the July 1999 notices to Administrative Code § 24-521, which in turn refers to Code § 19-150, should have alerted defendant to the possibility that it faced a penalty of up to $5,000 per day, especially since defendant has frequently litigated the issue of interferences (see Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244; Matter of Consolidated Edison Co. of New York v. Lindsay, 24 N.Y.2d 309; City of New York, 274 A.D.2d supra; Matter of Gen. Contrs. Assn. of New York, Inc. v. Tormenta, 259 A.D.2d 177, lv denied 95 N.Y.2d 754; Matter of Trocom Constr. Corp. v. Sander, 251 A.D.2d 17, lv denied 92 N.Y.2d 811).
The $5,000 per day penalty is not so disproportionate to the offense as to shock our sense of fairness (Pell, 34 N.Y.2d at 233). We have warned defendant on at least two prior occasions that it "does not have the option to leave the interferences in place, and thereby delay projects pending efforts to induce contractors to do the work at a price [it] deems fair" (City of New York v. Consolidated Edison, 274 A.D.2d at 194; City of New York v. Consolidated Edison, 114 A.D.2d at 220).