Barroncini v. Shang

77 A.D.2d 803, 430 N.Y.S.2d 752, 1980 N.Y. App. Div. LEXIS 12563

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1980
• Status: Published

Opinion

Judgment unanimously affirmed, without costs. Memorandum: The only reasonable interpretation which may be placed upon the language of subdivision 2 of section 15 of the Transportation Corporations Law is that which is enunciated in Matter of Rivera v Berger (89 Misc 2d 586, 593-594, affd 60 AD2d 605, mot for lv to app den 44 NY2d 642, app dsmd 44 NY2d 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 NY2d 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 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. (Appeal from judgment of Oneida Supreme Court—art 78.) Present—Dillon, P. J., Cardamone, Doerr, Witmer and Moule, JJ.