#### Consolidated Edison Company of New York, Inc., Appellant, v George Haymer et al., Respondents.

Supreme Court, Appellate Term, First Department,

February 29, 1988

APPEARANCES OF COUNSEL

*Ernest J. Williams, Sheila Solomon Rosenrauch*and *Geraldine O’Donnell*for appellant.

OPINION OF THE COURT

Per Curiam.

Eleven orders of the Civil Court, New York County (two *96orders entered May 30, 1985; one order entered May 30, 1985; three orders entered May 30, 1985; three orders entered June 18, 1985; and two orders entered July 5, 1985) are affirmed, without costs.

These consolidated appeals are from the denial of separate applications by the plaintiff, Consolidated Edison Company of New York, Inc. (Con Edison), for orders of seizure (CPLR 7102), to replevy utility meters located at the premises of the respective defendants. Each defendant is allegedly in arrears in utility payments. Prior to seeking orders of seizure the plaintiff had made at least one unsuccessful attempt to gain access to each of the defendants’ premises for the purpose of disconnecting their respective utility meters and discontinuing utility service to those premises. Plaintiff is ostensibly unable to terminate defendants’ utility service without access to defendants’ respective utility meters, and plaintiff obviously sought orders of seizure in the court below to facilitate both access to the meters and termination of utility service to the defendants.

Prosecution of an action for recovery of a chattel under CPLR article 71 is similar to the prosecution of any other action, except for the ability of the plaintiff in an article 71 action, under certain circumstances, to obtain possession of the chattel sought pendente lite by replevin (CPLR 7102 *et seq;*7A Weinstein-Korn-Miller, NY Civ Prac f 7101.01). Replevin under CPLR 7102 is generally deemed a provisional-like remedy and is traditionally treated among the "family” of provisional remedies. The reason orders of seizure are considéred more than provisional remedies is that unless a defendant after the seizure (1) excepts to the sureties on plaintiff’s undertaking, (2) moves to impound the chattel or have it returned or (3) reclaims the chattel, the seized property will be turned over to the plaintiff. It is this possibility, of actual delivery of the seized chattel to the plaintiff, which takes the order of seizure out of the "provisional” category. As Professor David Siegel in his practice treatise has observed: "The fact that the plaintiff can end up with the chattel before an adjudication on the *merits*— and, *indeed, before an action has been commenced*— makes the seizure order a good deal more than a provisional remedy, at least potentially” (Siegel, NY Prac § 340, at 416; emphasis added).

That the Legislature saw fit to afford the court of original jurisdiction substantial discretion in determining whether to grant orders of seizure is manifested in the language of CPLR *977102 (d) (1), to wit: "Upon presentation of the affidavit and undertaking and upon finding that it is probable the plaintiff will succeed on the merits and the facts are as stated in the affidavit, the court *may*grant an order” (emphasis added; *cf,*CPLR 7102 [former (d) (1)], "the court *shall*grant an order” [emphasis added]; *Consolidated Edison v Pearson,*123 Misc 2d 598, 600). In view of the court of original jurisdiction’s inherent discretion in this area and the superficial character of the supporting affidavits framed by Con Edison (i.e., form affidavits in which blanks are filled in and which do not instill great confidence as to the quality of the underlying investigation and the certitude of the facts alleged therein), it cannot be said that the court below erred as a matter of law in denying the 11 applications for orders of seizure which are the subject of these appeals.

Moreover, we view the plaintiffs’ applications for orders of seizure to have been essentially ex parte applications entitled to even less consideration than similar applications made on notice. That Con Edison sent to the defendants its own "Notice of Application” calculated to afford the defendants some notice that Con Edison would be seeking an order of seizure and informing the defendants that they could secure a hearing on the application for the order of seizure by proceeding to the Civil Court and informing the clerk of their desire for such a hearing does not render Con Edison’s applications for orders of seizure an application on notice within the parameters of the CPLR. *Consolidated Edison Co. v Church of St. Cecilia*(125 Misc 2d 744, 747) considered this exact point and concluded, *inter alia:*"that traditional New York State motion practice is applicable to requests made on notice for orders of seizure. Under such standards, the notice must contain the date and time the application shall be presented to the court and allow a proper time to respond calculated under CPLR 2214 and 2Í03. The notice here only states that the addressee must respond to the clerk 'within ten (10) days from the date of [mailing] of this notice,’ which satisfies neither requirement”. Since the applications for orders of seizure are to our view most accurately characterized as ex parte applications, CPLR 7102 (d) (3) controls, to wit: "An order * * * [of seizure which pursuant to CPLR 7102 (d) (1) may be issued on notice, only where (1) the court finds it is probable the plaintiff will succeed on the merits and (2) the facts are as stated in the supporting affidavit] may be granted *without notice*only if, in addition to [those two] other prerequisites for the granting of *98the order, the court finds that unless such order is granted without notice it is probable the chattel will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value” (emphasis added). Certainly Con Edison has not satisfied this requisite of CPLR 7102 (d) (3) for the issuance of ex parte orders of seizure in the 11 applications here at issue. No indication is presented that the meters at issue will become unavailable, be transferred, concealed, disposed of, or removed from the State or will become substantially impaired. That Con Edison is seeking court-ordered access to utility meters in the possession of the defendants so that Con Edison may, *inter alia,*discontinue utility service to defendants who are in arrears in their utility payments manifestly does not warrant departure from the legal and constitutional prerequisites to replevin.

Parness, J. P.

(dissenting). Plaintiff Consolidated Edison Company of New York, Inc. (Con Edison) appeals from 11 separate orders of the Civil Court, New York County, entered by various Judges on various dates. These 11 orders, consolidated by this court for appellate review, involve applications by plaintiff Con Edison for repossession orders permitting a city Marshal to "break open, enter and search” defendants’ premises, seize their utility meters and thereby terminate electrical and gas service. The defendants, all in arrears in payment of utility charges, consist of 10 residential customers and 1 commercial customer of Con Edison. The defendants, who are the respondents herein, did not appear in the proceedings below and have not participated in these appeals.

Con Edison has traditionally resorted to replevin to recover its utility meters from customers who have defaulted in paying for utility services but whose utility service cannot be terminated without access to the meters located on the customers’ premises and to which access cannot be obtained without resort to replevin. Con Edison, seeking to retrieve the utility meters in question, applied to the courts below for the appropriate prejudgment seizure order under CPLR article 71. Those applications were denied on various grounds, e.g.: failure of Con Edison to satisfy constitutional notice and due process requirements *(cf, Fuentes v Shevin,*407 US 67; *Sniadach v Family Fin. Corp.,*395 US 337; *Finkenberg Furniture Corp. v Vasquez,*67 Misc 2d 154), failure of Con Edison to submit adequate affidavits in support of applications for orders *99of seizure, failure of Con Edison to provide adequate undertakings, defects in Con Edison’s proposed orders of seizure, etc.

More than a decade ago Con Edison, through consultation with the Administrative Judges of the Civil Court, attempted to resolve certain differences that had arisen with regard to procedures for securing orders of seizure. Those consultations resulted in a directive to Judges and clerks, "Replevin — Minimal Guidelines for Utilities”, issued March 19, 1974 by Edward Thompson, J.S.C., the Administrative Judge of the Civil Court of the City of New York.

Ten years later the New York State Attorney-General, pursuant to his authority under Executive Law § 63 (15), undertook a separate review of Con Edison’s practice of seeking orders of seizure to secure meters of customers in default of utility payments. Specifically, the Attorney-General concluded that Con Edison’s applications for orders of seizure, of which there were 27,350 in 1981, failed to comply with the Home Energy Fair Practices Act (HEFPA) (Public Service Law art *2;*L 1981, ch 713), which governs "the provision of residential service by gas, electric and steam corporations and municipalities” (Public Service Law § 30). Pursuant to the provisions of HEFPA and the rules implemented thereunder by the Public Service Commission (16 NYCRR 11.1-11.22), "special protections * * * regarding the termination and restoration of utility service” are to be afforded to certain specified classes of residential customers, to wit: the elderly, blind and disabled, and in all cases involving medical emergencies or shutoffs during periods of cold weather (16 NYCRR 11.5; Public Service Law § 32 [3]). The Attorney-General also objected to Con Edison’s failure to forward to customers — together with the "notice” informing them an order of seizure will be sought— the affidavit to be submitted to the court by Con Edison in support of its application for the order of seizure. In an "Assurance of Discontinuance Pursuant to Executive Law § 63, subdivision 15” executed February 24, 1983, the Attorney-General and Con Edison agreed to the procedure and the forms to be used in future applications to the court for orders of seizure.

The application procedure and forms approved by the Attorney-General include a comprehensive preseizure notice to the customer. That notice is to be accompanied by a copy of the affidavit to be submitted in support of the seizure application, which affidavit is to contain the pertinent account, information and recite Con Edison’s compliance with the requirements of *100CPLR article 71 and with HEFPA. A copy of an undertaking and the proposed order seizure complete the package.

In each of these cases plaintiff employed the procedure and forms approved by the Civil Court Administrative Judge and the Attorney-General, including a preliminary mailing of a notice of termination giving the customer 15 days to make payment of the overdue charges. Recourse to seizure was had, in each instance, only after the customer had failed to respond and after plaintiff had made at least one attempt, without success, to gain access to the customer’s premises to disconnect the meter. Each of the plaintiff’s seizure applications included, *inter alia,*proof of service of the comprehensive notice of contemplated seizure, a surety company’s undertaking, a "Collector Document” containing the customer’s billing and payment information, and an affidavit by one of plaintiff’s officers reciting the underlying facts. In those cases involving a residential utility account, the affidavits state that the special classes of residential customers protected by the HEFPA (Public Service Law art 2) and its implementing regulations (16 NYCRR part 11) are not here involved. Specifically, the affidavits aver that insofar as plaintiff’s records indicate, no "medical emergency exists at the affected premises”; defendants are not "elderly, blind or disabled” or recipients of public assistance; and termination of the utility account will not "affect heat-related service” to defendants’ premises.

In this connection, Con Edison annually mails to each customer a booklet entitled "Your Rights and Responsibilities As a Residential Customer”. This publication contains an application for "Special Rights Program” which asks the customer, to respond if entitled to the special protection afforded by the HEFPA. Additional information concerning customer special needs is collected by Con Edison from its employees’ contact with customers and from other social agencies. All this information is contained in the customer’s computerized account record which is consulted prior to making a seizure application.

The majority sustain the denial of the seizure orders by the courts below on essentially two grounds: first, that the court of original jurisdiction is given "substantial” or "inherent” discretion in deciding whether to grant orders of seizure and second, that "it cannot be said that the court below erred as a matter of law in denying the eleven applications.” The majority, aware that discretion does not mean a court may arbitrar*101ily grant or deny orders as it sees fit, criticizes the "form” affidavits submitted by Con Edison in support of its application, noting that information was just "filled in”.

As noted above the form of the affidavits to be employed by Con Edison in replevin proceedings was arrived at and approved by the Attorney-Géneral. Further, each affidavit refers to specific relevant facts, including the particular amount involved, the name of the customer, account number, etc. The position of the majority, that each application need be individually composed, in varied writing styles in order to manifest sufficient veracity to warrant granting the relief requested, is unreasonable. If anything, use of standardized affidavits facilitates review by the court clerical staff. Indeed, much of the practice in Civil Court utilizes forms of one sort or another.

The majority suggests that a further procedural flaw in Con Edison’s applications is that the preseizure notice to the customer of possible termination of gas and/or electric service and meter seizure is insufficient to render the application "one on notice” since it does not provide the specific date and time when the application is returnable (CPLR 2214, 2103). In the majority’s view, this failure to provide "proper” notice rendered Con Edison’s applications "ex parte”. Since ex parte seizure applications require an additional showing that the meters sought to be seized will be transferred, concealed or removed from the State, failure by Con Edison to so allege would be fatal to their requests for orders of seizure (CPLR 7102 [d] [3]).

However, both the form and substance of preseizure notice sent by Con Edison evolved through approval of the Administrative Judge of the Civil Court in 1974, ratification of subsequent Administrative Judges, and ultimately approval of the Attorney-General. This notice is both in English and Spanish. The heading of the notice alerts the customer to the consequence of the application in bold, eye-catching type:

"notice! your gas or electricity may be cut off! if you WISH A HEARING YOU MUST GO TO THE CLERK’S OFFICE OF THE CIVIL COURT AT 111 CENTRE STREET, 4TH FLOOR NEW YORK, NEW YORK, IMMEDIATELY * * *

"¡AVISO! SUS SERVICIOS DE GAS Y ELECTRICIDAD PUEDEN SER SUSPENDIDOS! SI DESEA UNA AUDIENCIA DEBARA PRESENTARSE IMMEDIATEAMENTE EN LAS OFICINA DE LA CORTE CIVIL SITUADA EN EL 111 CENTRE STREET, CUATRO PISO, NEW YORK, NEW YORK”. *102It further informs the customer of the delinquency of the account, the amount due, and the last meter reading. It explains the customer’s HEFPA rights and his right to be represented by an attorney. It cautions that if a seizure order is signed, the Marshal will break into the premises and that “your electric and/or gas meter can be taken and your service terminated” and it advises the customer how to prevent this, i.e., by requesting a hearing before a Judge. To obtain such a hearing, the customer is advised that he must go to Civil Court, Special Term, Part II, between 9:00 a.m. and 5:00 p.m. within 10 days from date of service of the notice.

As can be seen this notice contains warnings and other information which would not be contained in an ordinary notice of motion. Further, it does comply with CPLR 2214 and 2103 in that it does fix a time and place for response by the defendant, albeit a time frame rather than a specific date and time. Certainly the court should not object to a procedure which provides defendant with greater latitude in responding, by providing a period in which to respond at the Civil Court, rather than compelling appearance at a specific date and time. Moreover, the notice gives the customer an opportunity to obtain a hearing date from the clerk of the court on a date and at a time more likely to suit the customer’s needs than if the return date and time were to be arbitrarily fixed by Con Edison in its notice.

We should not casually dismiss the imprimature of the Administrative Judges of the Civil Court and the Attorney-General concerning proper notice procedures for bringing on litigated motions in utility seizure cases. Obviously, it was their opinion, based upon their experience in the Civil Court and in the context of their concern for protection of the public that Con Edison’s customers who wish to be heard in opposition to preseizure notices would be afforded a greater opportunity to be heard and be less likely to default if given a period of 10 days, from 9:00 a.m. to 5:00 p.m. to request a hearing than if confined to a specific return date and time. The majority’s holding that a specific return date and time is a prerequisite to bringing on a litigated motion for an order of seizure is in error. In short, the preseizure notice employed by *103Con Edison affords its nonpaying customers more liberal notice than they would otherwise be entitled to and, for the reasons stated, the orders of seizure sought by Con Edison should have been granted.

Sandifer and Ostrau, JJ., concur; Parness, J. P., dissents in a separate memorandum.