Lefkowitz v. Pub. Serv. Com'n of State

• Decision Date: 14 October 2010
• Citation: 912 N.Y.S.2d 307,77 A.D.3d 1043
• Parties: In the Matter of Sol LEFKOWITZ, Doing Business as Lefkowitz Summer Homes, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 307 77 A.D.3d 1043 In the Matter of Sol LEFKOWITZ, Doing Business as Lefkowitz Summer Homes, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of New York, Respondent. Supreme Court, Appellate Division, Third Department, New York. Oct. 14, 2010.

Sol Lefkowitz, Monticello, appellant pro se.

Peter McGowan, New York State Public Service Commission, Albany (John C. Graham of counsel), for respondent.

Before: CARDONA, P.J., PETERS, ROSE, MALONE JR. and STEIN, JJ.

STEIN, J.

Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered November 4, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding that New York State Electric & Gas had properly billed petitioner for prior electrical services.

Petitioner owns a seasonal bungalow colony consisting of 55 cottages in the Village of Monticello, Sullivan County. In 1999, New York State Electric & Gas (hereinafter NYSEG), the utility that provides electrical service to the colony, replaced one of the two meters installed there. The new meter purposely registered only a fraction of the colony's actual electrical usage. In this case, it was determined that the meter only registered 1/40 of the actual usage. Accordingly, in order to calculate the usage forbilling purposes, NYSEG was supposed to adjust the meter reading by multiplying it by a "meter multiplier" of 40. In October 2003, NYSEG discovered that it had been applying a multiplier of 1 to the meter readings since the meter's installation, resulting in petitioner being underbilled for the time period of May 1999 until October 2003. Pursuant to 16 NYCRR 13.9 (c)(1), NYSEG was only allowed to bill petitioner for the 12 months prior to discovering its error, resulting in a bill of $3,217.01 for the time period of October 2002 to October 2003.

Petitioner complained to the Department of Public Service's Office of Consumer Services, which tested the meter in question and determined that the meter reading was accurate and that the adjusted bill for services was correct. Thereafter, petitioner requested and was granted an informal hearing, at the conclusion of which the Hearing Officer determined that, pursuant to 16 NYCRR 13.9(b)(4), NYSEG had forfeited its right to bill petitioner for the prior usage and directed that the bill for such service be deleted frompetitioner's account. NYSEG appealed and respondent reversed, finding, among other things, that the bill for prior service was not precluded by 16 NYCRR 13.9(b)(4). Petitioner then commenced this CPLR article 78 proceeding challenging respondent's determination. Supreme Court dismissed the petition, prompting this appeal.

We affirm. "[T]he interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable" ( Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 548-549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 [1997]; accord Matter of Association of Cable Access Producers v. Public Serv. Commn. of State of N.Y., 1 A.D.3d 761, 763, 767 N.Y.S.2d 166 [2003], lv. denied 2 N.Y.3d 705, 780 N.Y.S.2d 311, 812 N.E.2d 1261 [2004] ). 16 NYCRR 13.9(b)(4) provides that "[a] utility shall not render a backbill for any underbilling when the reason for the underbilling is apparent from the customer's service application, or could have been revealed in a service application and the utility failed to obtain and retain one." Here, petitioner contends that NYSEG's failure to obtain or retain his service application precludes it from billing him for any prior alleged underpayment. We note, however, that NYSEG was not required to obtain a written service application from petitioner ( see 16 NYCRR 13.2[a] [3] ). Further, there is no evidence that NYSEG's internal failure to multiply the meter reading by the assigned multiplier would...