Opinion
March 29, 1995
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court did not err by dismissing the plaintiffs' complaint (see, CPLR 3211 [a] [7]). We disagree with the court's conclusion that the doctrine of primary jurisdiction requires that the question of the legality of the defendant's tariff be referred to the Public Service Commission. Whether the limitation of liability provision of the defendant's tariff contravenes 16 NYCRR 218.1 presents a question of law, which is originally cognizable in the courts, rather than a mixed question of law and fact, which is within the special competence of the Public Service Commission (see, Kovarsky v Brooklyn Union Gas Co., 279 N.Y. 304, 312; Guglielmo v. Long Is. Light. Co., 83 A.D.2d 481). However, the Supreme Court could not have properly issued a declaratory judgment on the legality of the tariff provision in question since there is no justiciable controversy presented in this case (see, Matter of Hunt Bros. v Glennon, 81 N.Y.2d 906, 910; Matter of New York State Inspection, Sec. Law Enforcement Empls. v. Cuomo, 64 N.Y.2d 233, 238-239; Winkler v. Spinnato, 134 A.D.2d 66, 81, affd 72 N.Y.2d 402, cert denied 490 U.S. 1005). Accordingly, the proper forum to entertain the plaintiffs' demand for declaratory relief is the Public Service Commission, which has the authority to issue a declaratory ruling if it determines that such a ruling is warranted by the public interest (see, 16 NYCRR 8.1).
We have examined the appellants' remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Lawrence and Florio, JJ., concur.