Opinion
November 23, 1970
In this condemnation proceeding to acquire an easement in respondents' land for the continued maintenance of petitioner's underground conduits and cables, etc., petitioner appeals from an order of the Supreme Court, Westchester County, dated July 9, 1969, which, upon petitioner's motion for summary judgment or alternative relief and upon respondents' cross motion to dismiss the petition, referred to Special Term, Part III-A of that court the issue of the necessity for the condemnation. Order reversed, on the law, with $10 costs and disbursements; petitioner's motion granted to the extent of striking from respondents' answer (1) the denial of the allegations in paragraph "7" of the petition and (2) the affirmative defenses contained therein, and otherwise denied; respondents' cross motion denied; and the remaining issues in the action, i.e., concerning the amount of the compensation to be paid by petitioner to respondents for the taking of the easement, remitted to the Special Term. While generally an order of reference to hear and report is not appealable, the general rule should not apply at bar, in view of the facts and circumstances herein (see Stowell v. Berstyn, 26 A.D.2d 828). In our view, on the issue of the necessity for the condemnation, the discretion of petitioner in seeking continuance of the cables and conduits it had previously installed pursuant to a franchise previously obtained from the Town of Mount Pleasant is binding on the court, unless respondents can establish, to the satisfaction of the court, fraud, bad faith, or a gross abuse of discretion on petitioner's part (cf. Matter of New York Harlem R.R. Co. v. Kip, 46 N.Y. 546, 551-552; Nichols, Eminent Domain [3d ed.], pp. 573-581; People v. Fisher, 190 N.Y. 468, 477; New York Tel. Co. v. Wood, 145 Misc. 481; Tennessee Gas Transmission Co. v. Geng, 11 Misc.2d 739; Cuglar v. Power Auth. of State of N.Y., 4 Misc.2d 879, 897, affd. 4 A.D.2d 801). Respondents have failed to establish any triable issue in this connection. Furthermore, respondents' contention in their answer that the ejectment judgment granted to them by the late Mr. Justice HOYT on July 2, 1968, which directed petitioner to remove its telephone lines and conduits from respondents' property has allegedly estopped petitioner from instituting this proceeding is negated by Mr. Justice HOYT'S opinion and decision upon which that judgment was based. Mr. Justice HOYT there expressly excluded from his determination the right to obtain the easement by purchase or condemnation. Rabin, Acting P.J., Munder, Martuscello, Latham and Benjamin, JJ., concur.