MATTER OF CONSOL. EDISON CO. OF NEW YORK, INC. v. State Bd. of Equalization & Assessment

58 N.Y.2d 710 (1982)

In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v. State Board of Equalization and Assessment, Respondent and Village of Pleasantville et al., Intervenors-Respondents.

Court of Appeals of the State of New York.

Argued November 9, 1982.

Decided December 2, 1982.

Mark S. Tulis, Ernest J. Williams, Martin B. Cowan and Suzanne E. Hawkins for appellant.

Robert Abrams, Attorney-General (Vernon Stuart and Peter H. Schiff of counsel), for respondent.

Melvin H. Osterman, Jr., Michael Whiteman and Kevin Young for Westchester Municipalities, intervenors-respondents.

Frederick A. O. Schwarz, Jr., Corporation Counsel (John P. MacArthur of counsel), for City of New York, intervenor-respondent.

G. Robert Witmer, Jr., David M. Lascell, John B. Hood and Gary J. Jakaitis for National Fuel Gas Distribution Corporation and another, amici curiae.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum; Judge GABRIELLI taking no part.

*712MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

The only question before us on this appeal is whether the Appellate Division erred in holding that Special Term abused its discretion as a matter of law in allowing the filing by petitioner of a supplemental appraisal, the original appraisal filed by it under 22 NYCRR 839.2 not having included data concerning reproduction cost new less depreciation. It is not claimed that the decision to file the appraisal in that form was not a deliberate one on petitioner's part, or that any cause for supplementing it existed other than the decision of Special Term, now overruled by the Appellate Division, that the special franchise properties, *713 the valuation of which petitioner seeks by this proceeding to have reduced, are specialties to be valued only on the basis of reproduction cost new less depreciation.

Whether the Appellate Division was correct in overruling Special Term as to the method of valuation is not before us on this appeal, nor need we consider whether had the Special Term valuation ruling not been overruled its existence would provide good cause under the Third Department's rule. The sole predicate for the allowance by Special Term of the filing of a supplemental appraisal having been the valuation ruling and the Appellate Division having held that ruling erroneous, it necessarily follows that there was not only not good cause for allowing supplemental filing, there was no cause. Without Special Term's valuation ruling, its authorization of a supplemental appraisal was without basis and, therefore, an abuse of discretion as a matter of law.

Order affirmed, etc.