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ROCHESTER TEL v. FAIRPORT

84 A.D.2d 455 (1982)

Rochester Telephone Corporation, Respondent, v. Village of Fairport et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

January 22, 1982

Attorney(s) appearing for the Case

Harris, Beach, Wilcox, Rubin & Levey (Paul R. Braunsdorf of counsel), for appellants.

Nixon, Hargrave, Devans & Doyle (Frank H. Penski and Thomas E. Reidy of counsel), for respondent.

DENMAN and MOULE, JJ., concur with SIMONS, J. P.; CALLAHAN and SCHNEPP, JJ., dissent and vote to reverse the judgment and dismiss the complaint in an opinion by CALLAHAN, J.

SIMONS, J. P.

In 1977 defendant Village of Fairport, undertook a Federally funded program to reconstruct and relocate West Church Street and the related water and sewer lines, sidewalks and landscaping. In connection with the project it ordered plaintiff to underground its transmission facilities for the 13 blocks of the reconstruction. Plaintiff did so under protest and it now sues to recover the cost contending the order was an unlawful exercise of...

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