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UNDER THE TERMS OF THE LEASE AND VILLAGE REGULATIONS, THE HERKIMER COUNTY INDUSTRIAL DEVELOPMENT AGENCY, AS THE OWNER OF PROPERTY ABANDONED BY THE TENANT, IS RESPONSIBLE FOR THE UNPAID WATER CHARGES INCURRED BY THE TENANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined Herkimer County Industrial Development Agency (HCIDA) as the owner of property which had been abandoned by the tenant was responsible to the Village for water charges incurred by the tenant:

… [W]here, as here, an owner “consents to the tenant’s using water in [a] building, supplied through pipes installed by the owner, or continued by the owner, for the purpose of connecting the building with the [municipality’s] water main, the owner assents to the [municipality’s] supplying water to the tenant for use in the building” … . In the case before us, it appears that the water pipes of the facility that were connected to the Village’s water mains “were installed by the owner of the [facility], if not by the present owner, [HCIDA], then by [its] predecessor in title and the connection was never shut off or disconnected by [HCIDA],” and we note that “[t]he only purpose of maintaining a connection between [the facility] and the [Village’s] water mains [was] to have the [Village] supply the [facility] with water”… . Moreover, the lease contemplated that the tenant would incur utility charges as part of its operation, use, and occupancy of the leased facility. “When such assent [to] or arrangement [for the tenant’s use of water] is made, it must be deemed to be made with a view to the existing law” … . We therefore must evaluate the existing law at the time of HCIDA’s assent to the Village supplying water to the tenant in order to determine whether liability for the unpaid water rents may be imposed upon HCIDA. …

… [U]nder the section entitled “Liability for Water Service,” Rule No. 7 of the [Village] regulations provides that “[a]ll bills, whether for use of water or repairs to water service, are a charge against the owner of the premises or property where the water is used, and said bills will be rendered to the owner or occupant of said premises.” Under the same section, Rule No. 8 provides, in pertinent part, that “[a]ll bills for the use of water become due and payable and are a lien on the premises where the water is used” and that “[f]ailure to receive bills for said water services . . . does not relieve the owner and/or consumer from liability to pay.” … Upon construing the regulations as a whole and according to the ordinary and plain meaning of the words therein, we conclude that the regulations provide for the imposition of liability on property owners for water consumed on such property and supplied by the Village.  Herkimer County Indus. Dev. Agency v Village of Herkimer, 2019 NY Slip Op 06237, Fourth Dept 8-22-19

 

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FIBER OPTIC CABLES AND ENCLOSURES ARE TAXABLE UNDER REAL PROPERTY TAX LAW (RPTL) 102 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the fiber optic cables and equipment at issue constitute taxable property under RPTL 102, in that the statutory exception for radio and television signals was not demonstrated to be applicable:

…  [T]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion.’ Moreover, a statute authorizing a tax exemption will be construed against the taxpayer unless the taxpayer identifies a provision of law plainly creating the exemption . . . Thus, the taxpayer’s interpretation of the statute must not simply be plausible, it must be the only reasonable construction’ ” … . …

… [P]etitioners contend that their fiber optic installations are not taxable property pursuant to RPTL 102 (12) (i) (D) because, inter alia, petitioners use those properties to some unspecified extent to transmit “news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public” … . We reject that contention. In light of petitioners’ failure to establish the percentage of their fiber optic installations that are used for those purposes, we may accept their contention only if we conclude that any such usage of fiber optic installations, no matter how slight, is sufficient to exclude the properties from the tax. That is not ” the only reasonable construction’ ” of the statute … , indeed, it is “simply [not plausible” … . If we accept that interpretation, based on the proliferation of uses of cell phones to stream video, television, and other programming, all fiber optic cables will be excluded from taxation. That, however, conflicts with the Court of Appeals’ determination in T-Mobile Northeast, LLC that such property is taxable (32 NY3d at 608). Moreover, RPTL 102 (12) (i) provides that taxable property includes all “wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities.” Matter of Level 3 Communications, LLC v Erie County, 2019 NY Slip Op 05913, Fourth Dept 7-31-19

 

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THE PUBLIC SERVICES COMMISSION HAS THE AUTHORITY TO IMPOSE RATE CAPS AND OTHER RESTRICTIONS ON ENERGY SERVICE COMPANIES WHICH USE THE PUBLIC UTILITY INFRASTRUCTURE TO DELIVER ELECTRICITY TO CONSUMERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Public Service Commission (PSC) has the authority to impose rate caps on energy service companies (ESCOs) who use the public utility infrastructure:

… [W]e are asked to determine whether the Public Service Law authorizes the Public Service Commission (PSC) to issue an order that conditions access to public utility infrastructure by energy service companies (ESCOs) upon ESCOs capping their prices such that, on an annual basis, they charge no more for electricity than is charged by public utilities unless 30% of the energy is derived from renewable sources. We conclude that the Public Service Law, in authorizing the PSC to set the conditions under which public utilities will transport consumer-owned electricity and gas, has such authority. * * *

Because the PSC is empowered to regulate utilities’ transportation of gas and electricity and created the ESCO markets for the benefit of consumers, and because the legislature has delegated to the PSC the authority to condition ESCOs’ eligibility to access utility lines on such terms and conditions that the PSC determines to be just and reasonable, it follows that the PSC has authority to prohibit utilities from distributing overpriced products by conditioning ESCOs’ access on a price cap. That is, the statutory framework permits the PSC, pursuant to its authority to regulate the energy market, to impose a price cap on ESCOs as a condition of eligibility. Therefore, although the PSC has no direct rate-making authority over ESCOs, it did not exceed its statutory authority in determining that public utility transportation of energy sold by ESCOs is not “just and reasonable” if ESCOs are charging consumers more than that charged by public utilities. Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2019 NY Slip Op 03655, CtApp 5-9-19

 

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ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

UTILITIES (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/REAL PROPERTY LAW (GAS PIPELINE, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/EMINENT DOMAIN (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/ENVIRONMENTAL LAW  (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))

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NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined the respondent NYS Public Service Commission did not exceed its rule-making authority when it imposed a moratorium on energy service companies’ (ESCOs’) enrollments and renewals of customers who participate in utility low-income assistance programs (APPs):

Whether agency rulemaking infringes upon the Legislature’s policy-making powers is governed by the “four coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1 [1987]): “whether (1) the regulatory agency balanced costs and benefits according to preexisting guidelines, or instead made value judgments entailing difficult and complex choices between broad policy goals to resolve social problems; (2) the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance; (3) the [L]egislature had unsuccessfully attempted to enact laws pertaining to the issue; and (4) the agency used special technical expertise in the applicable field” … . …

This Court recently observed that respondent had the statutory authority to require that, in all new and renewal contracts between an ESCO and a residential customer or small nonresidential customer, the ESCO must guarantee “savings in comparison to what the customer would have paid as a full service utility customer or provide at least 30% renewable electricity” … . Citing respondent’s “broad” statutory authority “to set just and reasonable tariff rates for gas and electric corporations pursuant to Public Service Law articles 1 and 4” and that the same discretion allowed respondent to open the state’s energy markets to ESCOs in the first instance, we observed that respondent may “impose limitations on ESCO rates as a condition to continued access” … . The moratorium at issue on this appeal is directly responsive to concerns that ESCOs were costing customers, particularly APPs, more money than if they had just used a utility, a result in direct conflict with the original purpose of opening the energy markets to ESCOs … . ​Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2018 NY Slip Op 07378, Third Dept 11-1-18

ADMINISTRATIVE LAW (NYS PUBLIC SERVICE COMMISSION, UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/NYS PUBLIC SERVICE COMMISSION (ADMINISTRATIVE LAW, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/UTILITIES (LOW INCOME ASSISTANCE, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/LOW INCOME ASSISTANCE (UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))

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IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a class action stemming from the loss of power during Hurricane Sandy, determined: (1) the public was a third-party beneficiary of a contract between National Grid and the Long Island Power Authority (LIPA); (2) the public was subject to the arbitration clause in the contract; and (3) filing a pre-answer motion dismiss did not act as a waiver of arbitration:

… [U]nder limited circumstances nonsignatories may be compelled to arbitrate” … . “Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement” … . “The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim” … . …

National Grid … demonstrated that the plaintiffs derived a direct benefit from the [contract] and that the plaintiffs are explicitly relying upon the terms of that agreement to support their claims against National Grid. Accordingly, under these circumstances, the plaintiffs should be compelled to arbitrate in accordance with the arbitration clause … . …

… [T]the service of a pre-answer motion to dismiss does not constitute waiver of the right to arbitrate, since “a defendant is entitled to have the sufficiency of a complaint tested before a duty to seek arbitration arises” … . Similarly, an appeal from the denial of a motion to dismiss does not result in waiver of the right to arbitrate … . Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2018 NY Slip Op 07127, Second Dept 10-24-18

ARBITRATION (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CONTRACT LAW (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CIVIL PROCEDURE (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/UTILITIES (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY’S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant gas company's (appellant's) motion for summary judgment in this negligence action should have been granted. During a hurricane a tree in plaintiff's neighbor's yard uprooted and disturbed a gas line, causing the neighbor's home to explode. Plaintiff allegedly was injured by debris from the explosion. The Second Department held that plaintiff had not raised a question of fact about whether the gas line was negligently maintained or whether the dangerous condition was created by the gas company:

… [T]he appellant established, prima facie, that it was not negligent in the installation of the subject gas service line … . The appellant submitted evidence that the tree that uprooted was not present in 1936 when the gas service line was installed. This evidence included the deposition testimony of a former senior administrator for the appellant's predecessor, who testified that the presence of a tree would have rendered it impossible to install the line where it was placed in 1936. The appellant also submitted an affidavit of an arborist, who opined that the subject tree was a mature tree planted after the construction of the community was completed in 1938, based on the fact that nearly every other house on the subject block had alternating plantings of similar sized trees, thereby demonstrating that the trees were intentionally planted as part of the development of the community. …

Further, the appellant established, prima facie, that it was not negligent in maintaining the gas service line. The appellants' experts noted that the appellant complied with applicable regulations (see 49 CFR 192.723; 16 NYCRR 255.723) by performing a walking survey of the property on which the tree was located to detect leaks on July 28, 2010, within the three-year period prior to the explosion. The appellant submitted evidence demonstrating that no leaks were detected during that walking survey… . Deitrick v Long Is. Power Auth., 2018 NY Slip Op 06079, Second Dept 9-19-18

NEGLIGENCE (PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/UTILITIES (GAS EXPLOSION, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/GAS (UTILITIES, NEGLIGENCE, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT).

The Second Department determined the abutting property owners (Lomangino and Joro) and the city were entitled to summary judgment in this sidewalk slip and fall case. The raised concrete with bolts coming out of it, over which plaintiff allegedly tripped, was the base of a lamp post which was never replaced. The object was not part of the sidewalk, so the property owners were not required to maintain it. The city did not have written notice of the defect, so it was not liable. Con Ed, however, was not entitled to summary judgment because it submitted Lomangino's deposition in which he testified Con Ed had installed the object:

Lomangino and Joro established, prima facie, that the defect upon which the plaintiff tripped was not part of the sidewalk within the meaning of Administrative Code of the City of New York § 7-210… . Lomangino and Joro also established that Lomangino did not create the allegedly dangerous condition, that the condition was not the result of his negligent repair, and that Lomangino did not make any special use of the subject area … . …

The plaintiff also contends that the Supreme Court erred in granting that branch of the City defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them because (1) the prior written notice law is inapplicable, and (2) there are triable issues of fact as to whether the City defendants created the defective condition by knocking down the former lamppost during snowplow operations in the winter of 1998. “Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location”… . Contrary to the plaintiff's contention, the prior written notice rule includes “any encumbrances” or “attachments” to the sidewalk (Administrative Code § 7-201[c][2]), and thus encompasses the lamppost foundation at issue here … . Madonia v City of New York, 2018 NY Slip Op 06088, Second Dept 9-19-18

NEGLIGENCE (ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/SLIP AND FALL (ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/MUNICIPAL LAW (SIDEWALKS, SLIP AND FALL, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/UTILITIES (SLIP AND FALL, SIDEWALKS, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))

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PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT).

The First Department determined plaintiff’s decedent’s recklessness was the sole legal cause of her death. During Superstorm Sandy plaintiff’s decedent went outside, barefoot, to photograph downed power lines and was electrocuted:

The decedent was killed during Superstorm Sandy when she twice ventured outside her home to photograph downed power lines, and was electrocuted when one of the lines came in contact with her ankle. Her friend, who witnessed the incident, provided statements attesting to the fact that decedent left her home to investigate whether there was a fire, was shocked when she touched a metal gate in her front yard, returned to her home, and then exited the house again, barefoot this time, in order to photograph the scene. Decedent’s friend stated that he warned her repeatedly to stay away from the live wires and to get back inside, but she disregarded his warnings.

Defendants’ motion for summary judgment was properly granted since decedent’s recklessness in approaching live power wires in the midst of a major storm in order to take photographs was the sole legal cause of her death… . Plaintiffs contend that defendants were negligent in failing to properly maintain the power wires, adequately prepare for the storm, and respond rapidly enough to the notice of the emergency situation resulting from the downed wires. However, even if defendants were negligent, decedent’s recklessness was a superseding cause of her death … . Abraham v Consolidated Edison Co. of N.Y., Inc., 2018 NY Slip Op 04517, First Dept 6-19-18

​NEGLIGENCE (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/UTILITIES  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/RECKLESSNESS (NEGLIGENCE, SOLE LEGAL CAUSE, ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/SOLE LEGAL CAUSE  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))/SUPERSEDING CAUSE  (ELECTROCUTION, PLAINTIFF’S DECEDENT’S RECKLESSNESS WAS THE SOLE LEGAL CAUSE OF HER DEATH BY ELECTROCUTION BY DOWNED POWER LINES (FIRST DEPT))

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COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge concurring opinion, determined that the complaints stated causes of action against the Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO),  and National Grid Electric Services LLC based upon defendants’ failure to shut down the power in advance of landfall by Hurricane Sandy. Plaintiffs alleged the failure to shut down the power resulted in fires which destroyed their property. The complaints alleged the defendants acted in a proprietary, not governmental, capacity and therefore were not entitled to governmental immunity. The Court of Appeals held that the defendants, at this pre-answer stage, had not met their burden of demonstrating their actions were governmental:

Defendants moved to dismiss the amended complaints pursuant to CPLR 3211 (a) (7) insofar as asserted against them on the ground that LIPA was immune from liability based on the doctrine of governmental function immunity, and that LILCO and National Grid were entitled to the same defense. Specifically, LIPA argued, among other things, that the actions challenged were taken in the exercise of its governmental capacity and were discretionary, and, even if they were not discretionary, plaintiffs’ failure to allege a special duty in the complaints amounted to a failure to state viable claims. Plaintiffs opposed the motions on the ground that defendants’ actions were proprietary, not governmental, and that special duty rules did not apply. Supreme Court denied the motions to dismiss in three substantially similar orders. * * *

… .[P]laintiffs’ allegations concern the provision of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York. In fact, LIPA itself was created to replace LILCO which, at the time, was an “investor owned utility” (Public Authorities Law § 1020-a). This takeover was anomalous and, when the legislation creating LIPA was enacted, the New York State Public Service Commission — the agency charged with ensuring safe and reliable utility service throughout the State — observed that, “[i]n New York State we have generally adopted a system of private ownership subject to close regulation” … . …

… [W]e cannot say, as a matter of law based only on the allegations in the amended complaints, as amplified, that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs’ injuries. Connolly v Long Is. Power Auth., 2018 NY Slip Op 01148, CtApp 2-20-18

MUNICIPAL LAW (IMMUNITY, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/IMMUNITY (GOVERNMENTAL, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/NEGLIGENCE (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/GOVERNMENTAL IMMUNITY (ELECTRIC POWER,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/UTILITIES (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/ELECTRIC POWER (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))

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