Abraham v. New York Tel. Co.
| Decision Date | 24 February 1976 |
| Citation | 85 Misc.2d 677,380 N.Y.S.2d 969 |
| Parties | Carl Henry ABRAHAM, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant. |
| Court | New York Supreme Court |
Queller, Fisher & Block, New York City (Morton H. Feder, New York City, of counsel), for plaintiff.
Dewey, Ballantine, Bushby, Palmer & Wood, New York City (Jack Kaufmann, New York City, and Bob Davis Mannis, New York City, of counsel), for defendant.
This is an action brought by an investor-businessman to recover damages from the telephone company ('Company') for interruptions and breakdowns in service to his hime in December 1968, and intermittently thereafter.
At the outset of this non-jury trial plaintiff moved to dismiss the fourth and fifth affirmative defenses contained in defendant's supplemental answer as a matter of law. The fourth defense alleges that defendant performed its services of furnishing, repairing and maintaining plaintiff's telephone service in good faith and without malice. The fifth defense sets up the schedule or 'tariff' filed with the Public Service Commission (General Tariff P.S.C. No. 800) which, in substance, purports to insulate the Company from any liability resulting from errors, omissions and mistakes in providing service to the public 'in the absence of gross negligence or wilful misconduct.'
The court reserved decision upon plaintiff's motion addressed to these defenses and both parties proceeded to adduce their proofs with respect to liability. The parties have now rested with respect to the liability issues, and proof as to damages has been deferred pending a ruling upon plaintiff's motion to strike these defenses.
It is conceded by plaintiff that nothing in the record would sustain a finding that plaintiff's alleged troubles with defendant's telephone service arose from malice, gross negligence, or wilful misconduct. To sustain his cause of action, and in the face of much settled law to the contrary (e.g., Weld v. Postal Telegraph Cable Co., 199 N.Y. 88, 92 N.E. 415; Hamilton Employment Service v. New York Telephone Co., 253 N.Y. 468, 171 N.E. 710), plaintiff adopts a bold stance which has been argued by his counsel with commendable imagination and ingenuity. Plaintiff advances the proposition that since 1933, when the mentioned tariff was filed with the P.S.C. the New York courts have gone awry in supposing (E.g., Meyerson v. New York Tel. Co., 65 Misc.2d 693, 318 N.Y.S.2d 900; Warren v. New York Tel. Co., 67 Misc.2d 348, 324 N.Y.S.2d 381) that the Sine qua non of recovery by a subscriber for interruption in his telephone service is a showing of gross negligence and/or wilful misconduct. Plaintiff, on the contrary, contends that even ordinary negligence need not be proved, but that the Company's obligation to respond in damages lies in the realm of strict liability.
In support of this argument plaintiff invokes Public Service Law Sec. 91 which provides:
Plaintiff submits that this section of the Public Service Law creates an absolute statutory duty. Once, says plaintiff, a telephone subscriber proves an interruption of service, it follows that the 'facilities' furnished are Ipso facto not 'adequate'; thereupon the role of the court is to assess the damages incurred in an action brought pursuant to Public Service Law Sec. 93.
If, indeed, plaintiff were correct in his reading of Sec. 91, it would follow that no rule or regulation of the P.S.C. could preempt or diminish what plaintiff terms 'the mandate' of the legislation; A fortiori no self-serving tariff filed by the telephone company, albeit with the imprimatur of the Commission, could have such effect (National Merchandising Corp. v. Public Service Commission, 5 N.Y.2d 485, 186 N.Y.S.2d 47, 158 N.E.2d 714; People ex rel. Public Service Interstate Transp. Co. v. Public Service Commission, 262 N.Y. 39, 186 N.E. 195; People ex rel. Municipal Gas Company of the City of Albany v. Public Service Commission, 224 N.Y. 156, 120 N.E. 132).
However, this court holds that Sec. 91 is not susceptible of the reading or interpretation attributed to it by plaintiff. Accordingly, plaintiff's motion to strike the defenses is denied, and his cause of action is dismissed.
Sec. 91 does not stand in splendid isolation, but is part of a comprehensive regulatory scheme for public utilities. The requirement that 'instrumentalities and facilities' must be 'adequate' must be read as a statutory guide to the primary responsibility of the Commission, which is the supervision and control of 'rates, rentals and charges' for service (Public Serv.L. Sec. 92). The rates for service, insofar as Sec. 91 may be germane, must be fixed so that the telephone company's instrumentalities and facilities shall be...
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