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AFA Protective Systems, Inc., Et Al., Appellants- Respondents, v. City of New York, Respondent- Appellant.

Decided on February 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
ROBERT A. SPOLZINO
DAVID S. RITTER
MARK C. DILLON, JJ.

2006-00549
(Index No. 43521/94)
[*1]AFA Protective Systems, Inc., et al., appellants- respondents,

v

City of New York, respondent- appellant.





Robert D. Kleinman, Syosset, N.Y., for appellants-respondents.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Ronald E. Sternberg and Scott Shorr
of counsel), for respondent-appellant.


DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiffs have
no obligation to pay the defendant any fee under Administrative Code of the
City of New York § 15-127 from January 1, 1994, forward, the plaintiffs appeal
from an order of the Supreme Court, Kings County (Partnow, J.), dated November
3, 2005, as amended December 6, 2005, which denied their motion, in effect, for
summary judgment declaring that they have no obligation to pay the defendant
any fee under Administrative Code of the City of New York § 15-127 from
January 1, 1994, forward, and granted those branches of the defendant's cross motion
which were for summary judgment on its counterclaim on the issue of
liability, and, in effect, for summary judgment declaring that the plaintiffs have an
obligation to pay the defendant a fee under Administrative Code of the City of
New York § 15-127 from January 1, 1994, forward, and the defendant
cross-appeals from the same order, as amended.
ORDERED that the cross appeal is dismissed, as the defendant is not aggrieved
by the order, as amended (see CPLR 5511); and it is further,
ORDERED that the order, as amended, is reversed, on the law, with costs, the
plaintiffs' motion, in effect, for summary judgment declaring that they have
no obligation to pay the defendant any fee under Administrative Code of the
City of New York § 15-127 from January 1, [*2]1994, forward, is granted, those
branches of the defendant's cross motion which were for summary judgment on its
counterclaim as to liability and, in effect, for summary judgment declaring
that the plaintiffs have an obligation to pay the defendant a fee under
Administrative Code of the City of New York § 15-127 from January 1, 1994, forward,
are denied, and the matter is remitted to the Supreme Court, Kings County, for
the entry of a judgment declaring that the plaintiffs have no obligation to pay
the defendant any fee under Administrative Code of the City of New York §
15-127 from January 1, 1994, forward.
A private fire alarm company (hereinafter PFA) is a nongovernmental entity
that provides fire protection services for many businesses located within the
City of New York. For more than 125 years, PFAs have provided such services. In
this regard, a PFA installs devices known as "terminals" on its subscribers'
premises, which transmit a signal to the PFA's "central office" when they sense
a smoke or fire condition. A dispatcher at the PFA's central station may then
forward that signal to one of the "Communications Offices" operated by the
New York City Fire Department (hereinafter FDNY) (see Rules of City of NY Fire
Dept [3 RCNY] § 17-01 [d][3][ii]). A dispatcher at an FDNY Communications
Office then interprets the signal to discern the terminal's "terminal assignment
number." Since the FDNY has a "tailored" response for each terminal assignment
number, the FDNY Communications Office dispatcher immediately knows exactly
where the "fire emergency" is, and the best way the FDNY should respond to it.
The FDNY Communications Office dispatcher then passes that information along to
the appropriate firehouse.
A PFA may choose to connect its equipment and facilities to the City's "fire
alarm communications system," which also connects public "call boxes" to the
Communications Offices, by means of telephone wires. Thus, when a PFA connected
to the fire alarm communications system forwards a signal to an FDNY
Communications Office, it does so through a direct, dedicated connection to the
system.
In 1910, the Legislature enacted a law, presently codified at section 15-127
of the Administrative Code of the City of New York, which authorizes the
City's Board of Estimate (hereinafter the Board) to charge PFAs for their use of
the fire alarm communications system (see L 1910, ch 544, § 1). In this regard,
the law, which has remained unchanged, authorizes the Board to charge PFAs
"which are connected with the . . . system," or which "are permitted to make any
use whatsoever of the service of such . . . system" (Administrative Code of
the City of New York § 15-127[a][1]).
From 1923 through 1989, the Board passed a series of resolutions, which set
the fees that a PFA would have to pay for its use of the fire alarm
communications system. Each of the resolutions indicated that a PFA had to pay the fees
if it were "connected with" the system. On September 1, 1990, the Board was
abolished. Subsequently, the FDNY determined that it was the appropriate agency
to set the fees that the Board had been setting (see NY City Charter §
1152[e]).
As of November 1993, the plaintiffs, which are PFAs, stopped using their
central stations' direct, dedicated telephone connections to report fire
emergencies to the FDNY's Communications Offices. Instead, when the plaintiffs' central
stations received a signal from an activated terminal, the dispatchers there
called the FDNY Communications Offices' dispatchers on a public telephone
line, in the same manner as a member of the general public would report a fire
emergency. In addition, the plaintiff's central station dispatchers stopped
providing the FDNY [*3]Communications Offices' dispatchers with most of the
plaintiffs' subscribers' terminal assignment numbers, and the plaintiffs cancelled
thousands of other such numbers.
On June 19, 1994, an FDNY rule establishing a compensation schedule fixing
fees for PFAs became effective (see Rules of City of NY Fire Dept [3 RCNY] §
17-04). The rule, which the FDNY promulgated "pursuant to the authority vested
in" it by Administrative Code of the City of New York § 15-127(a)(1), provided,
in essence, that each PFA would pay a fee based on the number of terminals
that the particular PFA monitored (see Rules of City of NY Fire Dept [3 RCNY] §
17-04[c]).
In December 1994, the plaintiffs, which continued to be charged connection
fees, commenced the instant action against the City, seeking a judgment
declaring that they had no obligation to pay any fee under Administrative Code of the
City of New York § 15-127(a)(1) from January 1, 1994, forward.
The record establishes that the plaintiffs abandoned their direct, dedicated
telephone connections to the FDNY's Communications Offices by January 1, 1994,
and have not been "connected with" the City's fire alarm communications
system since that date (Administrative Code of the City of New York §
15-127[a][1]). Similarly, the record reveals that since that date, the plaintiffs have not
been "mak[ing] . . . use . . . of the service of [that] system" for the
"benefit of their patrons" (Administrative Code of the City of New York § 15-127
[a][1]). To the extent that the plaintiffs can be viewed as "making use of" of
the public telephone system for the "benefit" of some of their subscribers, they
are nevertheless making no use of the City's fire alarm communications system
- a network of dedicated telephone lines to which the plaintiffs have no
connection, and over which they do not forward signals.
Accordingly, since January 1, 1994, the plaintiffs have not been subject to
the fees set forth in the final 1989 Board resolution or in the rules of the
FDNY (cf. Matter of Society of N.Y. Hosp. v Axelrod, 70 NY2d 467, 474; Matter of
Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 595). Under these
circumstances, the plaintiffs were entitled to summary judgment declaring they
have no obligation to pay the City any fee under Administrative Code of the City
of New York § 15-127 from January 1, 1994, forward.
The parties' remaining contentions either are without merit or have been
rendered academic in light of our determination.
Since this is a declaratory judgment action, the matter must be remitted to
the Supreme Court, Kings County, for the entry of a judgment declaring that the
plaintiffs have no obligation to pay the defendant any fee under
Administrative Code of the City of New York § 15-127 from January 1, 1994, forward (see
Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US
901).
MILLER, J.P., SPOLZINO, RITTER and DILLON, JJ., concur.
ENTER: [*4]
James Edward Pelzer
Clerk of the Court