MYCKLEBUST v. CONSOLIDATED EDISON COMPANY OF NEW YORK INC (2025)

Amended order, Supreme Court, New York County (Anar Rathod Patel, J.), entered January 14, 2025, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about July 5, 2024, unanimously dismissed, without costs, as superseded by the appeal from the amended order.

Plaintiff challenges defendant's practice of charging a $100 no-access fee to customers who fail to provide access to remove old meters and install new electric remote meters, or smart meters.  Plaintiff alleges that the fee is prohibited by Public Service Law § 65, as that section allows fees to be imposed only on customers who refuse to provide access to inspect or read an existing meter.

Supreme Court providently exercised its discretion to defer primary jurisdiction of this action to the New York State Public Service Commission (PSC) (see Riverdale Jewish Ctr. v. Consolidated Edison Co. of N.Y., Inc. [Riverdale I], 233 A.D.3d 554, 554–555, 222 N.Y.S.3d 63 [1st Dept. 2024];  see also Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 362, 514 N.Y.S.2d 689, 507 N.E.2d 282 [1987];  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]).  The law is well settled that questions concerning a public utility's application of its filed tariffs and its compliance with the Public Service Law should be referred to the PSC for first-instance review under the doctrine of primary jurisdiction (see Riverdale Jewish Ctr. v. Brooklyn Union Gas Co. [Riverdale II], 237 A.D.3d 414, 415, 231 N.Y.S.3d 442 [1st Dept. 2025]).  Because the complaint alleges in the breach of contract cause of action that defendant was not authorized under the applicable tariff to charge the $100 no-access fee, the resolution of plaintiff's claims necessarily requires interpretation of defendant's filed tariff (see Riverdale II, 237 A.D.3d at 415, 231 N.Y.S.3d 442;  see also Matter of Black Radio Network v. Public Serv. Commn. of State of N.Y., 253 A.D.2d 22, 25, 685 N.Y.S.2d 816 [3d Dept. 1999]).  As a result, deference to the PSC avoids the possibility of inconsistent adjudications (Riverdale I, 233 A.D.3d at 555, 222 N.Y.S.3d 63).

We have considered plaintiff's remaining contentions and find them unavailing.