Power Authority v. Potocnik

Plaintiff sought access to portions of defendants’ property in Otsego County in order to conduct preliminary activities related to the construction of an electric power transmission line known as "Marcy South”. Faced with defendants’ refusal, plaintiff commenced an action seeking to permanently enjoin defendants from obstructing it from employing its right to enter upon privately owned property to conduct activities related to preparing final design plans and the exercise of eminent domain in connection with Marcy South. Plaintiffs motion for a preliminary injunction pending disposition on the merits was granted. However, Supreme Court imposed limitations as to the size of trees that could be cut, the use of track vehicles and the location of test borings. As to those activities which Supreme Court authorized plaintiff to engage in, the court apparently imposed the additional limitation that the activities could only be performed until plaintiff acquired an interest in the property. Plaintiff appeals from that part of the order which imposed limitations upon its activities. In Power Auth. v Bowen (121 AD2d 841), this court was faced with an appeal by plaintiff from a Supreme Court order in Delaware County which had granted plaintiffs motion for a preliminary injunction but had imposed limitations virtually identical to those presently before us. In Bowen, we granted the relief requested by plaintiff and modified the order to eliminate the limitations. We are unpersuaded by the arguments made by defendants on this appeal which were not advanced by the defendant in Bowen. Defendants’ assertion that plaintiff has not shown a likelihood of successfully establishing a right of entry to pursue preconstruction activities is without merit (see, EDPL 302, 404; Public Authorities Law § 1007 [8]; King v Power Auth., 44 AD2d 74, 76-77, affd 38 NY2d 756; see generally, Eminent Domain: Right To Enter Land For Preliminary Survey or Examination, Ann., 29 ALR3d 1104). Further, any damage caused by plaintiffs entry 915 on the land is fully compensable (EDPL 404; King v Power Auth., supra; 19 NY Jur, Eminent Domain, § 18, at 207 [1961]). Order modified, on the law and the facts, without costs, by deleting the final decretal paragraph containing three limitations, and, as so modified, affirmed. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.