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Civil Court, City of New York.

Kamal AHMED, Plaintiff(s), v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant(s).

SCB 1935/17–41

Decided: January 19, 2018

Plaintiff appeared Pro Se Defendant's Counsel:  Nadine Rivellese

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 ;  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 NY2d 409, 414 [2001];  Cron v. Hargro Fabrics, 91 NY2d 362, 366 [1998];  Leon v. Martinez, 84 NY2d 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 (id.). 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 NY2d 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 NY2d 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 NY2d 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 AD3d 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 NY2d 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 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 defendant credibly argue the same. Indeed, pursuant to 16 NYCRR 218.1,

[e]very gas corporation, electric corporation and gas and electric corporation shall, where necessary, amend its filed tariff schedules by eliminating therefrom ․ (b) Provisions limiting the liability of the corporation for damages resulting from its own negligence in connection with the property owned, installed or maintained by a customer or leased by a customer from a third party ․ [and] (c) Provisions limiting the liability of the company for any damages resulting from the negligence of the company in connection with the supplying or use of electricity or gas or from the presence or operation of the company's structures, equipment, wires, pipes, appliances or devices on the consumer's premises (emphasis added).

As a result of the foregoing statute, “utility companies are not absolved from liability for ordinary negligence claimed as the result of the supply or use of electricity, as opposed to damages caused by the interruption of the supply of service” (Bowen v. Niagara Mohawk Power Corp., 183 AD2d 293, 295 [4th Dept 1992];  Zoller v. Niagara Mohawk Power Corp., 137 AD2d 947, 950 [3d Dept 1988];  LoVico v. Consol. Edison Co., 99 Misc 2d 897, 898 [App Term 1979] [“We note that as to damages resulting from the supply or use of electricity, as opposed to damages caused by the interruption of the supply of service, the utility is not absolved from liability for its ordinary negligence.”] ). The court's decision in Bowen, is instructive and highlights the distinction between liability arising from the interruption of power—for which the utility is immune from suit—and liability arising from damage caused by the utility's negligence causing a power surge and for which the utility is liable. In that case, the plaintiff alleged that his home was destroyed by an electrical fire caused when a surge of electricity was carried through defendant's transmission and distribution lines;  overheating the wiring at the house (id. at 294). The surge, it was alleged, was caused by a healthy tree limb which fell on defendant's transmission and distribution lines about two miles from plaintiff's house (id.). The limb caused the distribution line to come into contact with the volt transmission line, resulting in an abnormal surge of high voltage of electricity through the transmission line (id.). That, surge, was alleged, damaged plaintiff's home because surge arresters on the transformer servicing plaintiff's house did not operate properly, allowing the abnormally high voltage to enter the house (id.). While the Court noted that defendant could not be liable for the interruption of service, it held that the facts alleged were damage by defendant's negligence related to the faulty transformers, for which defendant could be sued and for which acts the applicable Rate Schedule did not immunize the defendant (id. at 295 [“We agree that there are questions of fact precluding summary judgment on plaintiff's cause of action sounding in negligence, but we differ somewhat with the IAS Court regarding which questions of fact are in dispute. There is no dispute that the proximate cause of the voltage surge was the contact between the 46,000–volt distribution line and the 4,800–volt transmission line, resulting from the falling tree limb. Whether the limb was under defendant's control, however, is a question of fact that cannot be resolved on a motion for summary judgment. Additionally, plaintiff's experts have raised a question of fact whether the ‘surge arrestors' were functioning properly at the time of the fire.”] ).

Based on the foregoing, given plaintiff's allegations—that defendant's negligent work caused power surges which damaged his refrigerator—defendant is not immune from suit under either its own Rate Schedule or prevailing law (id. at 295). Accordingly, defendant's motion is denied. It is hereby

ORDERED that parties appear for a trial in this action, in the Small Claims Part of the Civil Court, Bronx County on March 15, 2018 at 6PM.

This constitutes this Court's decision and Order.


1.   While the complaint never actually pleads that defendant was negligent, the same is implied, especially here, an proceeding in the Small Claims Part of the Civil Court. To be sure, § 1804 of the New York City Civil Court Act states, in relevant part, that “[t]he court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or mentally ill person.” Thus, the fact that plaintiff's pleading are inartful is not fatal, particularly here, where during oral argument on this motion, plaintiff alleged defendant's negligence and the damages sustained thereby.

Fidel E. Gomez, J.