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THE CLASS—LONG ISLAND POWER AUTHORITY (LIPA) CUSTOMERS AFFECTED BY POWER OUTAGES CAUSED BY HURRICANE SANDY—SHOULD NOT HAVE BEEN CERTIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the class, Long Island Power Authority (LIPA) customers affected by Hurricane-Sandy power outages, should not have been certified:

The plaintiffs base their claims against LIPA on an allegation that LIPA failed to fulfill its promise, made in 2006, that it would spend $25 million annually on a 20-year “storm hardening” project (i.e., $500 million total) intended to render its electric system more durable and resilient in the face of major storms. …

… [T]o establish liability, the plaintiffs would have to demonstrate that, had LIPA performed storm hardening work consistent with its promise, their outages would have been shortened or avoided. This is, as LIPA argues, a fact-driven inquiry which is both speculative and hopelessly individual since it would require the factfinder to determine not only what should have been completed … , but also to speculate whether that work, had it been performed, would have prevented or shortened individual class members’ outages. * * *

… [T]he Supreme Court should also have denied class certification on the basis that the plaintiffs cannot state a viable cause of action to recover damages for breach of contract … . Matter of Long Is. Power Auth. Hurricane Sandy Litig. v Long Is. Power Auth., 2021 NY Slip Op 07545, Second Dept 12-29-21

 

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