Jericho Water District v. One Call Users Council, Inc.

37 A.D.3d 136, 826 N.Y.S.2d 659

This text of 37 A.D.3d 136 (Jericho Water District v. One Call Users Council, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jericho Water District v. One Call Users Council, Inc., 37 A.D.3d 136, 826 N.Y.S.2d 659 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Prudenti, EJ.

The Legislature has exempted certain operators of underground facilities, including “municipalities,” from contributing to the costs of operating a mandatory “one-call notification system,” but the statute granting the exemption does not define the term “municipalities.” The issue presented in this case is whether the plaintiff town improvement district is a “municipality” within the meaning of the statute, and thus exempt from the one-call notification system’s membership fee. We conclude that the context in which the statutory term “municipalities” appears and the fundamental purpose served by the statute indicate that the plaintiff is among the entities that the Legislature intended to treat as “municipalities” for purposes of the fee exemption.

In 1974 the Legislature responded to an increasing incidence of excavation-related accidents by enacting article 36 of the General Business Law. To prevent the personal injuries and property damage that resulted when excavation equipment came into contact with underground facilities such as gas, electric, and water lines, General Business Law article 36 required every local governing body in New York to create a central registry containing the names of all operators of underground facilities within the governing body’s geographical jurisdiction. Before commencing any excavation or demolition work, excavators were required to obtain the local central registry list, contact all operators on the list, and wait for each operator to mark its underground facilities or confirm the absence of any such facilities at the excavation site.

[138]*138Subsequently, private utility companies developed one-call notification systems, which allowed excavators to obtain a mark-out of all of the participating operators’ underground cables, pipes, and other facilities located at the site of a proposed excavation by making a single telephone call. Four such notification systems (eventually consolidated into two) were created in New York. Each one-call notification system is a not-for-profit corporation, which collects membership fees from its participating operators.

In 1994 the Legislature amended General Business Law article 36 to eliminate the central registry requirement, and instead mandate that every operator of underground facilities “participate in and be responsible for the administration of a one-call notification system” (General Business Law § 761 [1]). Article 36 provides that the costs of operating the one-call notification system are to be borne by its members, “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” (General Business Law § 761 [3]).

The plaintiff, Jericho Water District (hereinafter JWD), is a town improvement district with independently elected commissioners, which operates underground water facilities in the Town of Oyster Bay. JWD applied for membership in the defendant One Call Users Council, Inc., also known as New York City & Long Island One Call/Dig Safely, Inc., a one-call notification system administered by the defendant One Call Systems, Inc., and sought an exemption from the system’s membership fee, as a “municipality,” pursuant to General Business Law § 761 (3). The defendants took the position that JWD was not entitled to participate in the one-call notification system without paying a membership fee.

JWD commenced this action for a judgment declaring that it is a “municipality” within the meaning of General Business Law § 761 (3) and, therefore, exempt from contributing to the costs of the one-call notification system. The Supreme Court denied JWD’s motion for summary judgment and, in effect, granted that branch of the defendants’ cross motion which was for summary judgment, determining that JWD was not a “municipality” within the meaning of General Business Law § 761 (3) and, therefore, not entitled to an exemption from the membership fee. JWD appeals.

The term “municipalities” is not defined in General Business Law § 761, and no New York statute contains a universally ap[139]*139plicable definition of that term. The term “municipality” appears in dozens of statutes, and many of those statutes contain their own definition of the term. While some statutes limit the definition of “municipality” to counties, cities, towns, and villages (see e.g. ECL 15-1301 [3]; General Business Law § 780 [4]; General City Law § 20-g [3] [a]; General Municipal Law § 239-h [2]; Town Law § 284 [3] [a]; see also Executive Law § 155-a [4] [for purposes of Executive Law art 6-C, “ ‘ (m)unicipalities’ shall mean municipal corporations”]), other statutes define the term much more broadly. Indeed, some statutes expressly include town improvement districts in their definition of “municipality” (see e.g. ECL 17-1903 [1] [d]; 51-0101 [6]; General Municipal Law § 77-b [1] [a]; PRHPL 1.03 [7]; Public Authorities Law § 1115-a [13]; Public Health Law § 1160 [9]). The definition of the term varies widely from statute to statute, depending on the purpose served by the legislation. There are statutes defining “municipality” to include such diverse entities as fire districts (see e.g. County Law § 227 [2]), public libraries (see e.g. General Municipal Law § 77-b [1] [a]), boards of cooperative educational services (see e.g. Energy Law § 9-102 [2]), Indian nations or tribes (see e.g. Public Health Law § 1160 [9]), and even public authorities (see e.g. County Law § 227 [2]; Public Health Law § 1160 [9]).

In determining that JWD is not a “municipality” for purposes of the fee exemption, the Supreme Court relied on General Construction Law § 66 (2), which defines “municipal corporation” as including “a county, city, town, village and school district.” The terms “municipalities” and “municipal corporation^], ” however, are not necessarily interchangeable. It is not appropriate to look to the definition of “municipal corporation” (appearing in an article of the General Construction Law entitled “Classification of Corporations and Definitions”) to discern the meaning of the term “municipalities,” while disregarding the numerous New York statutes that define “municipality.”

As illustrated by the examples cited above, the term “municipality,” for purposes of any given statute, may include town improvement districts, or it may not. Our dissenting colleague reasons that JWD is not a “municipality” within the meaning of General Business Law § 761 (3) because the Legislature did not include in that statute, as it did in certain other statutes, a definition of “municipalities” that explicitly includes town improvement districts. The difficulty with that approach is that [140]*140it appears to indulge a presumption that the term “municipalities” does not include town improvement districts. In our view, given the many different definitions of the term that appear in the statutes of this State, no such presumption is warranted. The dissent’s assertion that the adoption of a more expansive definition of “municipalities” (one which includes town improvement districts) is better left for consideration by the Legislature and its lawmaking powers itself reflects a choice to assign a specific meaning to the term “municipalities” (one which does not include town improvement districts)—merely one possible meaning among the many that the Legislature has adopted.

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Bluebook (online)
37 A.D.3d 136, 826 N.Y.S.2d 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jericho-water-district-v-one-call-users-council-inc-nyappdiv-2006.