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Martin M. Filler v. Consolidated Edison

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 15, 2013

MARTIN M. FILLER,
APPELLANT,
v.
CONSOLIDATED EDISON,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Kevin J. Quaranta, J.), dated November 7, 2011.

Filler v Consolidated Edison

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2013

PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ

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

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $1,500, alleging that defendant had erroneously billed him at a commercial rate, rather than at a residential rate and, therefore, had overcharged him on his electric bills. Defendant moved, among other things, to dismiss the action on the ground that the Public Service Commission (PSC) had primary jurisdiction over plaintiff's utility bill dispute. The Civil Court agreed and granted defendant's motion.

It is uncontroverted that both the Civil Court and the PSC have jurisdiction over plaintiff's dispute. However, whether plaintiff should have been billed at a commercial or a residential rate is subject to the definition of such rates as promulgated by the energy provider. Since, under the regulatory scheme, the issue involved herein depends upon the specialized knowledge and experience of the agency which has been vested by the legislature with the authority to review such matters, the PSC has primary jurisdiction (see Thompson v New York State Elec. & Gas Corp., 25 AD3d 850 [2006]). As the record supports the Civil Court's determination, the parties have been provided with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

Accordingly, the order is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 15, 2013

20130315

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