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Boss Property Group v. Edison

Appellate Term of the Supreme Court of New York, Second Department
Mar 21, 2011
2011 N.Y. Slip Op. 50455 (N.Y. App. Term 2011)

Opinion

2010-937 Q C.

Decided March 21, 2011.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated January 4, 2010. The order granted defendant's motion to dismiss the action.

ORDERED that the order is affirmed, without costs.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ.


Plaintiff brought this small claims action to recover the sum of $3,000, alleging that defendant overcharged it on electric bills. Prior to commencing the action, plaintiff had initiated a proceeding before the New York State Public Service Commission ("PSC") for identical relief. It is unclear from the record whether the PSC issued a final determination.

Defendant moved to dismiss the action on the ground that the PSC has primary jurisdiction over utility bill disputes and plaintiff had failed to exhaust its administrative remedies with the PSC prior to commencing the action. Further, even if plaintiff had exhausted its administrative remedies with the PSC, its only recourse would be to initiate a CPLR article 78 proceeding in Supreme Court, rather than a plenary action in Civil Court. The Civil Court granted defendant's motion, and plaintiff appeals.

The Civil Court correctly dismissed the action, as the PSC has primary jurisdiction over this matter ( see Township of Thompson v New York State Elec. Gas Corp. , 25 AD3d 850 , 851-852) and the appropriate procedure for review of its determination, after administrative remedies have been exhausted, is a CPLR article 78 proceeding in Supreme Court ( see Anderson v Dutchess County , 12 Misc 3d 94 , 96 [App Term, 9th 10th Jud Dists 2006]; NY Const, art VI, § 15; see also Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 8). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.


Summaries of

Boss Property Group v. Edison

Appellate Term of the Supreme Court of New York, Second Department
Mar 21, 2011
2011 N.Y. Slip Op. 50455 (N.Y. App. Term 2011)
Case details for

Boss Property Group v. Edison

Case Details

Full title:BOSS PROPERTY GROUP, LP, Appellant, v. CON EDISON, Respondent

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Mar 21, 2011

Citations

2011 N.Y. Slip Op. 50455 (N.Y. App. Term 2011)
930 N.Y.S.2d 173