Opinion
2011-12-15
ERIE BOULEVARD HYDROPOWER, LP, Respondent, v. STATE of New York et al., Defendants.Mohawk Valley Water Authority, Proposed Intervenor–Appellant.
Hancock & Estabrook, L.L.P., Syracuse (Alan J. Pierce of counsel), for proposed intervenor-appellant. Hiscock & Barclay, L.L.P., Syracuse (Douglas J. Nash of counsel), for respondent.
Hancock & Estabrook, L.L.P., Syracuse (Alan J. Pierce of counsel), for proposed intervenor-appellant. Hiscock & Barclay, L.L.P., Syracuse (Douglas J. Nash of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
LAHTINEN, J.
Appeal from an order of the Court of Claims (Collins, J.), entered August 12, 2010, which denied a motion by Mohawk Valley Water Authority to intervene.
This claim and an action currently pending in Supreme Court, Oneida County, revolve around disputes about water rights involving West Canada Creek and Hinckley Reservoir as well as agreements implicating such rights entered into in 1917 and 1921. Claimant operates hydroelectric power production facilities that use water released from Hinckley Reservoir, which is fed by West Canada Creek. The reservoir is owned by defendant State of New York and operated by defendant New York State Canal Corporation, a subsidiary of defendant New York State Thruway Authority ( see Public Authorities Law § 382[1] ). Claimant's predecessor in interest and the State entered into an agreement in 1921 addressing minimum amounts of water to be released from the reservoir for claimant's use in producing hydroelectric power. Mohawk Valley Water Authority (hereinafter MVWA) is a public authority ( see Public Authorities Law § 1226–bb) that uses water from the reservoir to provide drinking water to various communities, and it is involved in litigation regarding a 1917 agreement between its predecessor in interest and the State about the amount of water to which MVWA is entitled ( see Mohawk Val. Water Auth. v. State of New York, 78 A.D.3d 1513, 1514, 910 N.Y.S.2d 780 [2010], lv. denied 17 N.Y.3d 702, 2011 WL 2237140 [2011] ). In October 2009, claimant commenced this claim for money damages alleging that defendants breached the 1921 agreement between it and the State by reducing water flow below the minimum level permitted by such agreement for one month in 2007. In May 2010, MVWA moved to intervene as a defendant, which the Court of Claims denied. MVWA appeals.
Although we agree with the Court of Claims' decision denying intervention under the pertinent statutory provisions ( see CPLR 1012, 1013), we also note a threshold jurisdictional issue. The State asserted a jurisdictional issue before the Court of Claims and, while the State has not taken a position on appeal, subject matter jurisdiction is nonwaivable and may be considered sua sponte ( see Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578 [1997]; State of New York v. Daniel OO., 88 A.D.3d 212, 217–218, 928 N.Y.S.2d 787 [2011]; Signature Health Ctr., LLC v. State of New York, 42 A.D.3d 678, 679, 840 N.Y.S.2d 191 [2007] ). Significant in such regard, MVWA seeks to intervene as a defendant, including its proposed answer with its motion. However, the jurisdiction of the Court of Claims is limited to claims against the State or where the State is the real party in interest ( see Morell v. Balasubramanian, 70 N.Y.2d 297, 300, 520 N.Y.S.2d 530, 514 N.E.2d 1101 [1987]; Court of Claims Act § 9), as well as to claims against a few other state-related entities as provided by statute ( see e.g. Public Authorities Law § 361–b [Thruway Authority]; Education Law § 6224[4] [City University of New York]; see generally Plath v. New York State Olympic Regional Dev. Auth., 304 A.D.2d 885, 886–887, 758 N.Y.S.2d 410 [2003] ). The statutes pertinent to MVWA ( see Public Authorities Law art. 5 tit 10) do not place claims against it in the Court of Claims and, in fact, incorporate notice provisions of the General Municipal Law ( see Public Authorities Law § 1226–s). In the absence of language specifically placing jurisdiction in the Court of Claims, those notice provisions “evince[ ] the legislative intent to place jurisdiction in a court of general jurisdiction, not the Court of Claims” ( Prime Energy Solutions, Inc. v. State of New York, 20 Misc.3d 750, 754, 862 N.Y.S.2d 879 [2008]; see Hampton v. State of New York, 168 Misc.2d 1036, 1037, 646 N.Y.S.2d 66 [1995] ). Although intervention as an additional claimant is permissible in the Court of Claims ( see Burlingame v. State of New York, 42 A.D.3d 923, 924, 839 N.Y.S.2d 889 [2007] ), MVWA cannot use intervention to create subject matter jurisdiction over it as a defendant in the Court of Claims ( compare Horoch v. State of New York, 286 App.Div. 303, 306, 143 N.Y.S.2d 327 [1955]; Buckley v. State of New York, 26 Misc.3d 660, 663, 890 N.Y.S.2d 301 [2009]; Highway Displays v. State of New York, 3 Misc.2d 727, 729, 156 N.Y.S.2d 197 [1956] ).
ORDERED that the order is affirmed, without costs.