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Boss Property Group, Lp v. Con Edison

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 21, 2011

BOSS PROPERTY GROUP, LP,
APPELLANT,
v.
CON EDISON,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated January 4, 2010.

Boss Prop. Group, LP v Edison

Decided on March 21, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ.

The order granted defendant's motion to dismiss the action.

ORDERED that the order is affirmed, without costs.

Plaintiff brought this small claims action to recover the sum of $3,000, alleging that defendant overcharged it on electric bills. Prior to commencing the action, plaintiff had initiated a proceeding before the New York State Public Service Commission ("PSC") for identical relief. It is unclear from the record whether the PSC issued a final determination.

Defendant moved to dismiss the action on the ground that the PSC has primary jurisdiction over utility bill disputes and plaintiff had failed to exhaust its administrative remedies with the PSC prior to commencing the action. Further, even if plaintiff had exhausted its administrative remedies with the PSC, its only recourse would be to initiate a CPLR article 78 proceeding in Supreme Court, rather than a plenary action in Civil Court. The Civil Court granted defendant's motion, and plaintiff appeals.

The Civil Court correctly dismissed the action, as the PSC has primary jurisdiction over this matter (see Township of Thompson v New York State Elec. & Gas Corp., 25 AD3d 850, 851-852 [2006]) and the appropriate procedure for review of its determination, after administrative remedies have been exhausted, is a CPLR article 78 proceeding in Supreme Court (see Anderson v Dutchess County, 12 Misc 3d 94, 96 [App Term, 9th & 10th Jud Dists 2006]; NY Const, art VI, § 15; see also Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 8 [1997]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: March 21, 2011

20110321

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