Kopald v. N.Y. Pub. Serv. Comm'n

• Decision Date: 07 April 2022
• Docket Number: 529641
• Citation: 204 A.D.3d 1108,166 N.Y.S.3d 694
• Parties: In the Matter of Deborah KOPALD, Appellant, v. NEW YORK PUBLIC SERVICE COMMISSION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1108

166 N.Y.S.3d 694

In the Matter of Deborah KOPALD, Appellant,

v.NEW YORK PUBLIC SERVICE COMMISSION et al., Respondents.

529641

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 10, 2022

Decided and Entered: April 7, 2022

Deborah Kopald, Fort Montgomery, appellant pro se.

Robert Rosenthal, Public Service Commission, Albany (John C. Graham of counsel), for New York Public Service Commission, respondent.

James D. Wong, New York City, for Orange and Rockland Utilities, Inc., respondent.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from a judgment of the Supreme Court (Young, J.), entered January 7, 2019 in Albany County, which, among other things, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Service Commission approving a request by respondent Orange and Rockland Utilities, Inc. to deploy advanced metering infrastructure throughout its service territory, and (2) from an order of said court, entered December 11, 2020 in Albany County, which denied petitioner's motion to, among other things, vacate the judgment.

Respondent Orange and Rockland Utilities, Inc. (hereinafter O & R) filed a petition for authorization of a program advancement proposal with respondent Public Service Commission (hereinafter the PSC) seeking, among other things, authorization to fully deploy advanced metering infrastructure (hereinafter AMI), or "smart meters," throughout O & R's service territory (hereinafter the AMI program). In November 2017, upon review of O & R's petition and following notice and comment (see generally State Administrative Procedure Act § 202[1] ), the PSC approved the petition in pertinent part. Petitioner, who at all times has been self-represented, requested rehearing (see generally 16 NYCRR 3.7 ), asserting that, for several reasons, the PSC erred as a matter of law in failing to hold a hearing on O & R's petition (see generally Public Service Law § 66[12][f] ; State Administrative Procedure Act § 301 ; 6 NYCRR 617.2 [al]; 16 NYCRR 7.2 [a]) and that several new circumstances warranted a different determination.

Ultimately, the PSC denied petitioner's request in full.

Petitioner then commenced this CPLR article 78 proceeding seeking to annul the PSC's determination. In the alternative, petitioner sought an order directing the PSC to either conduct an AMI pilot program and hold hearings thereon or grant petitioner's request for rehearing and, in either circumstance, temporarily stay further installation of smart meters pending the issuance of the PSC's new ruling. Following joinder of issue and certain motion practice, including a request by petitioner to stay the rollout of the AMI program pending disposition of her application, Supreme Court dismissed the application in its entirety. Petitioner later moved to vacate the court's judgment or, alternatively, renew. Respondents opposed her motion, and Supreme Court denied it. Petitioner appeals from the dismissal of her application and the denial of her postjudgment motion.

O & R contends that these appeals should be dismissed as moot because, during the 30 months that petitioner took to perfect her appeals, O & R moved forward with the AMI program in good faith, completing the approved deployment of smart meters in October 2020. "The jurisdiction of [a court] extends only to live controversies," and "where changed circumstances prevent [the court] from rendering a decision which would effectually determine an actual controversy between the parties involved, [the court] will dismiss the appeal" ( Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 810–811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003] [internal quotation marks and citations omitted], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ; see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). Where the change in circumstances involves the completion or substantial completion of a construction project, "courts have found several factors significant in evaluating claims of mootness," but "[c]hief among them has been a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172–173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ; see Matter of Weeks Woodlands Ass'n., Inc. v. Dormitory Auth. of the State of N.Y., 95 A.D.3d 747, 749–752, 945 N.Y.S.2d 263 [2012], affd 20 N.Y.3d 919, 956 N.Y.S.2d 483, 980 N.E.2d 532 [2012] ). "Factors weighing against mootness may include whether a party proceeded in bad faith and without authority" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [citations omitted]; see Matter of City of Ithaca v. New York State Dept. of Envtl. Conservation, 188 A.D.3d 1322, 1323, 135 N.Y.S.3d 503 [2020], lv denied 37 N.Y.3d 906, 2021 WL 4098181 [2021] ), and we must also consider whether the work can be "readily undone, without undue hardship" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 ; see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ).

In November 2017, O & R received the requisite approval to proceed with the AMI program, and, as noted, this Court has been advised that the program rollout...