Long Island Water Corp. v. Swidler

• Decision Date: 13 March 1972
• Citation: 38 A.D.2d 1002,329 N.Y.S.2d 484
• Parties: In the Matter of LONG ISLAND WATER CORP., Appellant, v. Joseph C. SWIDLER et al., Constituting the Public Service Commission of the State of New York, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 484

329 N.Y.S.2d 484

38 A.D.2d 1002

In the Matter of LONG ISLAND WATER CORP., Appellant, v. Joseph C. SWIDLER et al., Constituting the Public Service Commission of the State of New York, Respondents.

Supreme Court, Appellate Division, Third Department.

March 13, 1972.

Naylon, Huber, Magill, Lawrence & Farrell, New York City (Frederic H. Lawrence, New York City, of counsel), for petitioner.

Peter Schiff, Public Service Comm., Albany, for respondents.

Before HERLIHY, P. J., and STALEY, COOKE, SWEENEY and SIMONS, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to article 78 (transferred to the Appellate Division in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Public Service Commission which granted petitioner's application for a permanent rate increase but denied its request for reparations.

On May 29, 1970 petitioner filed a new increased rate schedule with the Public Service Commission to take effect July 1, 1970. Pursuant to subdivision 10 of section 89--c of the Public Service Law respondent instituted a proceeding to investigate, and suspended the effectuation of the new rates until October 28, 1970, which date was subsequently extended to April 28, 1971. During the interim period petitioner applied to have the suspended rate schedule become effective immediately subject to the provisions of section 113 of the Public Service Law. While this was denied, petitioner was authorized to put into effect temporary rates designed to produce an increase in revenues, but lower than that provided under the proposed rates. At the conclusion of the hearing the hearing officer recommended that petitioner's proposed new rates be granted, and appropriate reparations be allowed for the period during which the lower temporary rates were in effect. The Commission, on March 29, 1971, allowed the full rate increase filed by petitioner, but denied reparations. In denying reparations the Commission concluded that they are not authorized during the ten month period of suspension.

It is the contention of petitioner, among other things, that section 113 of the Public Service Law, as amended by the Laws of 1970, mandates reparations in spite of its permissive language. Respondent contends that the amendment was intended to permit the consumer to obtain a refund in cases where a temporary increase effective during the suspension period turned out to be greater than the...