The Third Department determined the doctrine of primary jurisdiction precluded plaintiff’s lawsuit against former officers of the Central Hudson Gas & Electric Corporation. Plaintiff believed the digital encoder receiver transmitter (ERT) installed at his home by the utility to replace an analog meter emitted cancer-causing radiation. Plaintiff removed the ERT and replaced it with an analog meter. The utility considered the meter dangerous and cut off plaintiff’s electricity. Plaintiff complained to the Public Service Commission (PSC) which supported the utilities’ power cut-off and informed plaintiff of his appeal rights. Plaintiff did not appeal and started the instant civil suit:
… [W]e find that Supreme Court was correct in its interpretation of the doctrine of primary jurisdiction. Under the doctrine of primary jurisdiction, a court has the discretion to refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction, and the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of the agency … . Here, the issues concern the particular meter used by Central Hudson, plaintiff’s removal and replacement of same, the safety concerns caused by his actions and the validity of the disconnection of his service. These matters fall under the doctrine and, thus, were appropriate for PSC determination. We also agree with Supreme Court’s assessment that the causes of action found in plaintiff’s complaint amount to little more than a rebranding of his PSC claim and were properly dismissed … .
… [W]e agree with Supreme Court’s determination that review of a PSC ruling is limited to a CPLR article 78 proceeding. “Supreme Court, in determining the motion for [summary judgment,] properly considered whether the . . . primary jurisdiction doctrine precluded the causes of action propounded by plaintiff” … , and that, in order to review the original ruling, it was incumbent upon plaintiff to bring an article 78 proceeding … . [Romine] v Laurito, 2020 NY Slip Op 04432, Third Dept 8-6-20