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Ahmed v. Consolidated Edison Co. of New York, Inc.

Civil Court of the City of New York, Bronx County

January 19, 2018

Kamal Ahmed, Plaintiff(s),
v.
Consolidated Edison Company of New York, Inc., Defendant(s).

          Plaintiff appeared Pro Se

          Defendant's Counsel: Nadine Rivellese

          Fidel E. Gomez, J.

         In this proceeding for property damage, defendant moves seeking an order pursuant to CPLR § 3211(a)(2), dismissing pro se plaintiff's action on grounds that the Court lacks the requisite subject matter jurisdiction to hear it. Saliently, defendant contends that as a public utility, its liability or lack thereof for damages caused by the interruption of electrical service is governed by the Rate Schedule filed with the Public Service Commission, which makes defendant immune from liability arising from damage to a customer's property. Plaintiff orally opposes the instant motion, asserting that defendant's negligence damaged his property.

         For the reasons that follow hereinafter, defendant's motion is denied.

         This is a Small Claims action, wherein plaintiff alleges that the refrigerator in his home was damaged by power surges caused by work being performed by defendant at or near plaintiff's premises. The small claims complaint alleges that on April 14, 2017, while within his premises, located at 1468 White Plains Road, Bronx, NY, defendant was performing work outside his home. It is alleged that in the performance of said work, defendant repeatedly turned off the power causing damage to plaintiff's refrigerator.

         Defendant's motion is denied insofar as the complaint alleges damage to plaintiff's property resulting from work being negligently performed by defendant [1] level="1">; circumstances which, if true, do not exempt defendant from liability.

         On a motion to dismiss for want of subject matter jurisdiction, CPLR § 3211(a)(2) authorizes dismissal, where "the court has not jurisdiction of the subject matter of the cause of action." Moreover, on a motion to dismiss a complaint pursuant to CPLR 3211 all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 N.Y.2d 362, 366 [1998]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366). In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (i d.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.). The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 N.Y.2d 409, 414 [2001]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 N.Y.2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]). However, "when evidentiary material [in support of dismissal] is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).

         In cases against a public utility, it is true that generally a court is without primary jurisdiction to hear such cases because "where an administrative agency also has jurisdiction, and the determination of the issues involved, under a regulatory scheme, [resolution] depends upon the specialized knowledge and experience of the agency" (Twp. of Thompson v New York State Elec. & Gas Corp., 25 A.D.3d 850, 851 [3d Dept 2006]). Thus, generally actions against a public utility arising from the delivery of electricity deprive a court of jurisdiction (id. at 851; Staatsburg Water Co. v Staatsburg Fire Dist., 72 N.Y.2d 147, 156 [1988] ["The doctrine of primary jurisdiction "applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views."]).

         Here, defendant urges that the Court lacks subject matter jurisdiction to hear this matter not because the issue requires some specialized knowledge such that the action ought to be venued before the Public Service Commission. Instead, defendant argues that the applicable Rate Schedule bars the instant action. Specifically, defendant cites Section 21.1 of Rate Schedule 10 (Con Edison's Rate Schedule [P.S.C. No. 10 § 21.1]), which states that

         [t]he Company will endeavor at all times to provide a regular and uninterrupted supply of service, but in case the supply of service shall be interrupted or irregular or defective or fail from causes beyond its control or through ordinary negligence of employees, servants or agents the Company will not be liable therefor.

         Defendant's argument is unavailing. While it is true, that the foregoing section of the Rate Schedule exempts defendant from liability arising from the interruption of power, the clear language of the section only confers immunity for the consequences arising from the long term interruption of power. In other words, damages related to not having power as opposed to damage to property caused thereby. Here, by contrast, where property damage is asserted as a result of defendant's negligence in the performance of repair work, defendant's liability is controlled by another section of the Rate Schedule. Section 21.4 of the Rate Schedule states that

[t]he Company will not be liable for any injury, casualty or damage resulting in any way from the supply or use of electricity or from the presence or operation of the Company's structures, equipment, wires, pipes, appliances or devices on the Customer's premises, except injuries or damages resulting from the negligence of the Company " (Con Edison's Rate Schedule [P.S.C. No. 10 § 21.4] [emphasis added]).

         Thus, the the clear language of the of the foregoing section of the Rate Schedule does not bar an action against defendant when premised on damages caused by defendant's negligence. Nor could ...


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