Opinion
CC-12-2706
03-15-2013
Samuel Enterprises, Inc., Plaintiff, v. Central Hudson Gas & Electric Corp., Defendant.
Michelle Kagan, Esq. Attorney for the Plaintiff Christina Bookless, Esq. Rizzo & Kelley Attorneys for the Defendant
Michelle Kagan, Esq. Attorney for the Plaintiff
Christina Bookless, Esq. Rizzo & Kelley Attorneys for the Defendant
Katherine A. Moloney, J.
Defendant has moved, by Notice of Motion dated December 14, 2012, to dismiss the complaint filed in this action pursuant to C.P.L.R. § 3211(a) (1)(2) and (7). Defendant's motion is supported by the affirmation of Christina Bookless, Esq. dated December 14, 2012, the affidavit of Eileen Lomoriello, defendant's Operating Supervisor with Credit and Collections, dated December 13, 2012 (Exhibit A), together with Exhibits B and C. Plaintiff has opposed the motion by filing the affirmation of Michelle Kagan, Esq., dated January 9, 2012. In reply to plaintiff's opposition and further support of its motion, the defendant filed the reply affirmation of Christina Bookless, Esq., dated January 16, 2013. The Court having duly deliberated on the motion, finds and determines the motion as follows:
FACTS AND ARGUMENTS:
Plaintiff brought the instant commercial claims lawsuit seeking to recover $2,975.62 from the defendant, said sum representing property damage allegedly resulting from the defendant's improper termination of electrical services. The defendant moves to dismiss the action, claiming, in part, that 1) plaintiff has failed to exhaust its administrative remedies prior to seeking judicial intervention. In particular, defendant claims the Public Service Commission (hereinafter "PSC") is the regulatory agency vested with reviewing and resolving claims like the instant one, and since plaintiff failed to file its claims with the PSC prior to bringing the instant lawsuit the matter should be dismissed; 2) plaintiff has failed to state a cause of action in that the plaintiff has failed to make itself available to defendant and this caused plaintiff to suffer the purported property damages it complains about now; and 3) since defendant followed the statutory regulations prior to terminating plaintiff's electrical services, and the bills sent to plaintiff left unpaid constitute documentary evidence of defendant's compliance with the regulations prior to terminating services, the matter should be dismissed.
The plaintiff has filed opposition to the motion to dismiss arguing that contrary to Ms. Lomoriello's affidavit, the plaintiff was never referred to the PSC for administrative resolution of the matter. Plaintiff further argues that this Court is the proper venue to recover damages suffered as a result of the defendant's improper termination of services, and that the issues in this matter generate questions of law outside the purview of the PSC.
In response, the defendant maintains that service was properly disconnected in accordance with the PSC regulations and that the proper procedure is for plaintiff to exhaust its administrative remedies with the PSC before seeking judicial intervention.
LEGAL ANALYSIS AND CONCLUSION: The Uniform City Court Act (UCCA) §1801-A provides that a commercial claim may be brought for any cause of action for money not to exceed five thousand dollars ($5,000.00). Should a matter be brought in this forum, the Court is empowered by statute to adjudicate commercial claims in such a manner as to do "substantial justice between the parties according to the rules of substantive law and is not bound by statutory provisions or rules of practice, procedure, pleading or evidence." Uniform City Court Act §1804-A.
The goal of the Commercial Claims courts is to provide a simplified and expeditious manner for claims to be heard "without the burden of being bound by statutory rules of practice, procedure, pleading and evidence." Celona v. Celona, N.Y.L.J., p. 36, col. 2 (March 25, 1994); citing MacCollam v. Arlington, 94 Misc 2d 692 (Albany City Ct., 1978); Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc 2d 339 (Civ. Ct., NY County, 1988); Harding v. NY State Teamsters Council, 60.AD2d 975 (4th Dept. 1978) appeal dismissed 44 NY2d 641 (1978). Indeed, motion practice is discouraged in these venues. Id. citing Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc 2d 339 (Civ. Ct., NY County, 1988)(motions to dismiss for failure to state a claim is inappropriate); Clegg v. Bon Temps, 114 Misc 2d 805, 809 (Civ. Ct., NY County, 1982).
Here, while the defendant moves to dismiss for failure to state a cause of action under C.P.L.R. § 3211(a)(7) and upon a defense founded in documentary evidence pursuant to C.P.L.R. § 3211(a)(1), such motions are rarely, if ever, applicable in commercial or small claims cases and should be dismissed as having been improperly brought, without reaching the merits. Weiner, supra at 342-43; Figueroa v. Rivera, 21 Misc 3d 835 (Poughkeepsie City Ct., 2008). As such, this Court dismisses that portion of defendant's motion seeking dismissal under C.P.L.R. § 3211(a)(1) and (7).Turning now to defendant's claim that this court lacks jurisdiction based upon the plaintiff's failure to exhaust its administrative remedies,this Court finds that this portion of the motion requires further analysis. While the exhaustion of remedies concept advanced by defendant is a procedural concept, not a substantive concept [see, Spano v. Kings Park Cent. School Dist., 61 AD3d 666 (2d Dept. 2009); Jackson v. Regional Transit Service, 54 AD2d 305, 308 (4th Dept. 1976); Deneen, v. City of New York, 106 Misc 2d 785 (Civ. Ct., Bronx County, 1980)], and this Court is bound to follow the substantive rules of law, the analysis must not end there.
The PSC is the administrative agency with the authority and established procedures for investigating and adjudicating disputes involving disconnecting electrical service. Public Service Law 66; N.Y.C.R.R. § 13.3; Guglielmo v. Long Island Lighting Co., 83 AD2d 481, 483 (2d Dept. 1981). Moreover, the regulations provide that,
Any utility customer may file a complaint with, or ask a question of, the commission relating to his or her electric, gas, steam, telephone or water service, when the customer believes he or she has not obtained a satisfactory resolution of a dispute with a utility regulated by the commission. Complaints may involve bills for utility service, deposit request, negotiations for deferred payment agreements, service problems, and other matters relating to utility service.16 N.Y.C.R.R. § 12.1. Here, the plaintiff concedes that the amount owed for electric was in dispute. Kagan affirmation, dated Jan. 9, 2013, §2.
The doctrine of primary jurisdiction requires that matters concerning the reasonableness of a utility's rates, rules, or practices must first be submitted to the Public Service Commission - the agency vested by the Legislature with authority to regulate and review such matters. Brownsville Baptist Church et al., v. Con Edison Co. of NY, 272 AD2d 358 (2d Dept. 2000). And while the claim before this Court is for damages sustained to plaintiff's property, the origin of plaintiff's claim relates to excessive charges and also challenges whether the rules and regulations terminating electrical services here - as fixed by order of the Public Service Commission - were reasonable and just. To this extent, the expertise of the Public Service Commission is necessary and it maintains primary jurisdiction to hear the matter, for it bares the power and duty to regulate matters involving terminating service. International Condominium Corp. v. New York Telephone Co., et al. 46 AD2d 719 (3d Dept. 1974); Boss Property Group, LP v. Con Edison, 31 Misc 3d 128(A) (App. Term, 2d Dept. 2011) (The PSC has primary jurisdiction over matters involving overcharges of an electric bill). As such, plaintiff's instant claim should be stayed pending resolution of the administrative process before the PSC.
THEREFORE, for all of the foregoing reasons, it is hereby
ORDERED that the defendant's motion to dismiss is denied; and it is further
ORDERED, that the matter is stayed pending resolution of the administrative process before the PSC; and it is further
ORDERED, that the plaintiff shall provide this Court with quarterly written updates relative to the status of its PSC complaint, otherwise the matter will be dismissed without prejudice.
SO ORDERED.
Dated: March 15, 2013
Poughkeepsie, New York____________________________
KATHERINE A. MOLONEY
CITY COURT JUDGE
ENTERED this ____ day of March 2013
___________________________
JEAN MARIE JICHA
CHIEF CLERK
An appeal from this judgment must be taken no later than the earliest of the following dates: (I) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after the personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action.