RIVERDALE JEWISH CENTER v. CONSOLIDATED EDISON COMPANY OF NEW YORK INC (2024)

Amended order, Supreme Court, New York County (Margaret A. Chan, J.), October 26, 2023, which granted defendant's motion to dismiss plaintiff's amended complaint to the extent of dismissing it without prejudice, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about October 24, 2024, unanimously dismissed, without costs, as superseded by the amended order.

Plaintiff alleges that the residential insert pamphlet distributed by defendant to its gas customers was inaccurate and misled qualifying religious institutions into selecting a less advantageous rate.  While concurrent jurisdiction does exist, it was a provident exercise of the court's discretion to defer primary jurisdiction to New York State Public Service Commission (PSC), which has the necessary expertise to dispose of the issue, with resort to a judicial tribunal withheld pending resolution of the administrative proceeding (see Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d 11, 22, 451 N.Y.S.2d 11, 436 N.E.2d 461 [1982];  Olsen v. Stellar W. 110, LLC, 96 A.D.3d 440, 441–442, 946 N.Y.S.2d 128 [1st Dept. 2012], lv dismissed 20 N.Y.3d 1000, 959 N.Y.S.2d 683, 983 N.E.2d 761 [2013]).  Deference to the PSC at this juncture avoids the possibility of inconsistent adjudications.  Plaintiff's claim that its suit does not involve the reasonableness of rates is unpersuasive.  Although plaintiff does not challenge the individual rates as set, it does challenge defendant's presentation of those rates, claiming that it was done in a manner so as to cause a higher rate assessment, making the primary jurisdiction doctrine applicable (see Porr v. NYNEX Corp., 230 A.D.2d 564, 568, 660 N.Y.S.2d 440 [2d Dept. 1997]).