Argued March 19, 2008.
decided May 1, 2008.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 12, 2006. The Appellate Division (1) reversed, on the law, so much of an order of the Supreme Court, Nassau County (Ute Wolff Lally, J.), as had (a) denied plaintiffs motion for summary judgment declaring that plaintiff is entitled to a "municipal" exemption from membership fees to the one-call notification system under General Business Law § 761 (3), and (b) granted defendants' cross motion for summary judgment insofar as it sought summary judgment declaring that plaintiff is not a municipality within the meaning of General Business Law § 761 (3) and is not entitled to exemption from membership fees to the one-call notification system; (2) granted plaintiff's motion; (3) denied that branch of defendants' cross motion which was for summary judgment; and (4) remitted the matter to Supreme Court for entry of a judgment declaring that plaintiff is a "municipality" within the meaning of General Business Law § 761 (3) and, therefore, exempt from contributing to the costs of operating the one-call notification system.
Jericho Water Dist. v One Call Users Council, Inc., 37 AD3d 136, reversed.
Wilder Linneball, LLP, Buffalo ( Laura A. Linneball of counsel), and Murphy, Bartol O'Brien, LLP, Mineola ( Robert Garfinkle of counsel), for appellants. I. The Second Department majority's construction of the word "municipality" as including all "governmental entities," "public entities" and water districts, renders General Business Law § 761 (3)'s additional exemptions of small water operators and authorities meaningless, in violation of well established rules of statutory construction. ( Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Rangolan v County of Nassau, 96 NY2d 42; Matter of Branford House v Michetti, 81 NY2d 681; Matter of Albano v Kirby, 36 NY2d 526; People v Dethloff 283 NY 309; Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1; Long Is. Power Auth. v Shoreham-Wading Riv. Cent. School Dist., 88 NY2d 503; Waters v New York City Hous. Auth., 69 NY2d 225; Matter of Citiwide News v New York City Tr. Auth., 62 NY2d 464; Matter of AT/Comm, Inc. v Tufo, 86 NY2d 1.) II. The Second Department majority erred by ignoring the plain language of General Business Law article 36 that indicates that not all governmental and public entities were intended to be excepted from contributing to the costs of the one-call system. ( Leader v Maroney, Ponzini Spencer, 97 NY2d 95; Rosner v Metropolitan Prop. Liab. Ins. Co., 96 NY2d 475; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Cohen v Lord, Day Lord, 75 NY2d 95.) III. The Second Department majority's decision conflicts with this Court's opinions and other Appellate Divisions' decisions, which hold that town improvement districts such as plaintiff are not municipalities. ( Kenwell v Lee, 261 NY 113, 262 NY 563; Holroyd v Town of Indian Lake, 180 NY 318; People ex rel. Farley v Winkler, 203 NY 445; People ex rel. Hon Yost v Becker, 203 NY 201; People ex rel. Desiderio v Conolly, 238 NY 326; Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574; Seaman v Fedourich, 16 NY2d 94; Longway v Jefferson County Bd. of Supervisors, 83 NY2d 17; Matter of Esler v Walters, 56 NY2d 306; Ball v James, 451 US 355.) IV The Second Department decision ignored the natural and most obvious construction of the term "municipality," i.e., a county, city, town or village, and therefore is in conflict with this Court's prior decisions. ( Sega v State of New York, 60 NY2d 183.) V. The Supreme Court correctly looked to the definition of "municipal corporation" in the General Construction Law to interpret the term "municipality." ( Southbridge Finishing Co. v Golding, 2 AD2d 430; O'Keeffe v Dugan, 185 App Div 53, 225 NY 667; Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574; Loria v Town of Irondequoit, lib F Supp 599; Matter of Conroy v Smithtown Cent. School Dist., 3 AD3d 492; Pittel v Town of Hempstead, 154 AD2d 581; Angona v County of Nassau, 129 AD2d 543; Clarkstown Teachers Assn. v Board of Educ. of Clarkstown Cent. School Dist., 162 AD2d 937; Sinram-Marnis Oil Co. v City of New York, 139 AD2d 360, 74 NY2d 13.) VI. The Second Department's majority wrongly ignored this Court's and other Appellate Divisions' prior decisions that require that the courts defer to executive and administrative officers' interpretations of General Business Law § 761 (3). ( Matter of Louis Harris Assoc. v deLeon, 84 NY2d 698; Matter of Village of Scarsdale v Jorling, 91 NY2d 507; Matter of Albano v Kirby, 36 NY2d 526; Matter of 47-40 41st Realty Corp. v New York State Div. of Hous. Community Renewal, 225 AD2d 547; Matter of Plaza Realty Invs. Queens Blvd. Props. Co. v New York City Conciliation Appeals Bd., 111 AD2d 395; Shoreham-Wading Riv. Cent. School Dist. v Town of Brookhaven, 107 AD2d 219, 65 NY2d 990; Matter of Limousine Rental Serv. v Feinberg, 9 AD2d 986; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Rangolan v County of Nassau, 96 NY2d 42; Matter of Branford House v Michetti, 81 NY2d 681.) VII. The legislative history does not support construing an operator of underground facilities that provides water to more than 4,000 customers to be a "municipality" within the meaning of General Business Law § 761 (3). ( Bender v Jamaica Hosp., 40 NY2d 560; Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14.) VIII. Most statutes, including statutes directly applicable to Jericho Water District, do not include town improvement districts, like Jericho Water District, in their definitions of "municipality." IX. The Second Department majority violated the rule of statutory construction that statutory exceptions must be strictly construed and is therefore in conflict with decisions of this Court and other Appellate Divisions. ( Farnham v Kittinger, 83 NY2d 520; Van Amerogen v Donnini, 78 NY2d 880; Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359; Hinchliffe v Orange Rockland Utils. Co., 216 AD2d 528, 87 NY2d 801; Krukowski v Steffensen, 194 AD2d 179; Matter of Charles, 200 Misc 452, 279 App Div 741, 791, 304 NY 776; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Morales v County of Nassau, 94 NY2d 218.) X. The Second Department failed to strictly construe the exceptions to General Business Law § 761 (3), so as not to defeat the law's major policy of equitably proportioning costs. ( Matter of Theroux v Reilly, 1 NY3d 232; People v Cypress Hills Cemetery, 208 AD2d 247; Matter of Albano v Kirby, 36 NY2d 526; Farnham v Kittinger, 83 NY2d 520; Van Amerogen v Donnini, 78 NY2d 880; Hinchliffe v Orange Rockland Utils. Co., 216 AD2d 528, 87 NY2d 801; Krukowski v Steffensen, 194 AD2d 179; Matter of Charles, 200 Misc 452, 279 App Div 741, 791, 304 NY 776; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652.) XI. The Second Department majority violated basic tenets of statutory construction. ( Matter of Albano v Kirby, 36 NY2d 526; Matter of Theroux v Reilly, 1 NY3d 232; People v Cypress Hills Cemetery, 208 AD2d 247; Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14; Morales v County of Nassau, 94 NY2d 218; Meltzer v Koenigsberg, 302 NY 523; Prego v City of New York, 147 AD2d 165; Triborough Bridge Tunnel Auth. v Crystal Son, 2 AD2d 37, 2 NY2d 961; Kenwell v Lee, 261 NY 113, 262 NY 563.)
Carman Callahan Ingham, LLP, Farmingdale ( Michael F. Ingham of counsel), for respondent. I. Standard rules of statutory construction dictate that plaintiff is entitled to a municipal exemption. ( Matter of Segal v Town of Thompson, 182 AD2d 1043.) II. Town Law article 13 commissioner elected districts are "units of government" independent from the county, town and village. ( Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574; Gaynor v Marohn, 268 NY 417; Matter of Christie v Phoenicia Water Dist., 194 AD2d 912; Matter of Esler v Walters, 56 NY2d 306; Kenwell v Lee, 261 NY 113; Tom Sawyer Motor Inns v Chemung County Sewer Dist. No. 1, 33 AD2d 720; People v Stoll, 242 NY 453; Matter of Bryan v Town Bd. of Brighton, 133 Misc 315; New York Tel. Co. v Town of N Hempstead, 86 Misc 2d 487, 52 AD2d 934, 41 NY2d 691; Grishaber v Town of Callicoon, 176 Misc 323, 263 App Div 471.)
Peter McGowan, Acting General Counsel, New York State Department of Public Service, Albany ( John C. Graham of counsel), for New York State Department of Public Service, amicus curiae. I. The State of New York Department of Public Service's memorandum in support of the statutory provision at issue distinguished municipalities from their subdivisions and small water companies from other providers. II. The Appellate Division misread the State of New York Department of Public Service's memorandum in support. III. The Appellate Division failed to recognize the practical consequences of its decision.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, PIGOTT and JONES concur.
OPINION OF THE COURT
All operators of underground facilities (pipes, cables, wires and the like) are required by statute to participate in a "one-call notification system," so that someone planning excavation may easily find out in advance where those facilities are. The costs of the one-call system are apportioned among the operators who belong to it, but "municipalities" are exempt from paying a share of the costs. We decide in this case that a water district is not a municipality for these purposes, and must pay its share.
Underground equipment that serves to carry gas, electricity, water and other things poses a problem for any project that involves digging. Accidental contact with pipes and wires can be costly and dangerous, and thus excavators must know where the underground facilities are before they start to dig. The purpose of a one-call system is to make that information available as efficiently as possible. A firm planning a project that involves excavation or demolition need make only one call, to the one-call center, to give notice about where it is digging. That information is relayed by the one-call system to all of its members who may have facilities in the area, and those members then mark the ground to show the excavator what parts of it to avoid.
General Business Law § 761 (1) says that every operator of underground facilities "shall participate in and be responsible for the administration of a one-call notification system." Section 761 (3) says, in relevant part: "The costs of operating the system shall be apportioned equitably among the members of the system, with the exception of municipalities and authorities that operate underground facilities and any operator of underground facilities that provides water service to less than four thousand customers."
Plaintiff, an operator of underground facilities, is an "improvement district," specifically a water district, created pursuant to Town Law § 190. Plaintiff is located in the Town of Oyster Bay, but its commissioners are independently elected, not appointed by town officials (Town Law § 211). Plaintiff brings this action against a one-call system and the administrator of that system, seeking a declaratory judgment that it is entitled to an exemption from sharing the system's costs. It is undisputed that plaintiff serves more than 4,000 customers, and that it is not an authority. The only issue is whether General Business Law § 761 (3)'s exemption for "municipalities" applies to it.
Supreme Court held that plaintiff was not a municipality, and granted summary judgment in defendants' favor. The Appellate Division, one Justice dissenting, reversed and granted summary judgment in plaintiffs favor. We granted leave to appeal, and now reverse the Appellate Division's order and reinstate Supreme Court's judgment.
"Municipality" is an ambiguous word. It denotes a unit of local government, but it may be used relatively narrowly, to include only entities exercising general governmental functions — i.e., counties, cities, towns and villages — or more broadly, to include also specialized governmental units like plaintiff. In several New York statutes, "municipality" is a defined term, and both the narrower definition (ECL 15-0107; Executive Law § 155-a, ; General Business Law § 780; General City Law § 20-g [a]; General Municipal Law § 239-h; Town Law § 284 [a]) and the broader one (General Municipal Law § 77-b [a]; Public Authorities Law § 1115-a) are used. But there is no statutory definition of the word as used in General Business Law § 761 (3), and the legislative history of that statute gives no clue to which definition the Legislature had in mind.
The narrower definition of "municipality" better corresponds to common usage. In ordinary English, a water district is not a municipality. We recognized this in Kenwell v Lee ( 261 NY 113, 116 ), where we held that a town water supply district "is not a municipality within the meaning of article VII, section 7, of the Constitution." We added that "[w]hile a water district, for the special objects of certain statutes, has been included as a matter of convenient reference within the terms `municipal corporation,' or `municipality' it is essentially and only `a special administrative area'" ( id. at 117 [citations omitted]).
Other aids to interpretation point in the same direction. General Construction Law § 66 (2) contains a relatively narrow definition of "municipal corporation," to include only "a county, city, town, village and school district." This definition "is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended" (General Construction Law § 110). While it is true that the General Construction Law defines "municipal corporation" and not "municipality," there is no apparent reason why the latter term should be read more broadly than the former.
The narrower meaning of "municipality," which does not include plaintiff and other improvement districts, is the one favored by amicus curiae the Department of Public Service (DPS). DPS drafted the legislation in issue, and the Public Service Commission, which is part of DPS, is charged with drafting regulations to implement it (Public Service Law § 119-b). While the definition of "municipality" is not one requiring specialized knowledge on which we must defer to agency expertise, we nevertheless pay respectful attention to the agency's views. And finally, our conclusion that the narrower reading is the correct one here is reinforced by the maxim that exceptions to generally applicable statutory provisions should be strictly construed ( see McKinney's Cons Laws of NY, Book 1, Statutes § 213).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.
Order reversed, etc.