Meyerson v. New York Tel. Co.

• Decision Date: 10 February 1971
• Citation: 65 Misc.2d 693,318 N.Y.S.2d 900
• Parties: A. Frederick MEYERSON, et al., v. NEW YORK TELEPHONE COMPANY.
• Court: New York Supreme Court

Page 900

318 N.Y.S.2d 900

65 Misc.2d 693

A. Frederick MEYERSON, et al., v. NEW YORK TELEPHONE COMPANY.

Supreme Court, Special Term, Kings County, Part I.

Feb. 10, 1971.

A. Frederick Meyerson, John J. Mullally, Brooklyn, of counsel for plaintiffs.

Dewey, Ballantine, Bushby, Palmer & Wood, Leonard Joseph and Burton R. Sueskind, New York City, of counsel, for defendant.

DOMINIC S. RINALDI, Justice.

The plaintiffs, in this action charging defendant New York Telephone Company with failure and refusal to provide adequate telephone service as required by section 91 of the Public Service Law, move for a preliminary injunction directing defendant to provide them with adequate service, to take the necessary steps in order to provide such service and enjoining the defendant in the interim from terminating or interfering with current service.

Defendant cross-moves for an order pursuant to CPLR 3211 dismissing the complaint upon the grounds that the court does not have jurisdiction of the subject matter of the cause of action and that the complaint fails to state a cause of action in that the matters complained of are subject to the primary or exclusive jurisdiction of the State Public Service Commission.

The plaintiffs, over 80 in number, reside in an area of Brooklyn serviced by three of the defendant's telephone exchanges. The complaint, which as hereinabove indicated is based upon alleged noncompliance with section 91 of the Public Service Law requiring telephone companies to provide adequate service, consists of two causes of action. The first cause of action alleges in substance that plaintiffs are subscribers to the telephone services of the defendant; that the facilities and telephone service provided by defendant are inadequate and that defendant has failed, neglected and refused to make necessary repairs and to improve service, notwithstanding plaintiffs' protests of poor service, and that as a result defendants have suffered monetary damage and jeopardy to their health, safety and welfare. The second cause of action alleges in substance that the failure to provide adequate service, despite defendant's knowledge of the conditions complained of, is due to gross negligence and/or wilful misconduct on the part of the defendant; and, that plaintiffs were thereby damaged and are entitled to a refund of moneys which were paid by them to defendant under defendant's threat to otherwise cancel and terminate the existing service. Plaintiffs in their prayer for relief in the complaint seek, in addition to monetary damages, a permanent injunction directing the company to provide adequate service as mandated by section 91 of the Public Service Law.

Section 91 provides in pertinent part that

'1. Every * * * telephone corporation shall furnish and provide with respect to its business such instrumentalities and facilities as shall be adequate and in all respects just and reasonable * * *'

and

'3. No * * * telephone corporation shall * * * subject any particular person, corporation or locality to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. * * *' Section 93 gives a cause of action for a violation of section 91 or any other portion of the Public Service Law by providing that if a telephone corporation shall do or cause or permit to be done anything prohibited or declared to be unlawful, or shall omit to do anything required to be done, 'either by law of the State of New York by this chapter or by any order of the Commission,' it shall be liable to the person or corporation affected thereby for all resulting loss, damage or injury, and an action to recover for such loss, damage or injury may be brought by the aggrieved party in any court of competent jurisdiction.

The thrust of the instant complaint is not directed at any individual act or omission allegedly rendering service inadequate, but addresses itself to a generalized situation, namely, an alleged breakdown or impairment of telephone service generally, as it affects the plaintiffs herein, a situation which necessarily involves consideration of a technical complex of factors properly coming at least in the first instance, within the administrative purview of the Public Service Commission.

The Public Service Commission is expressly charged and authorized by statute to investigate complaints of inadequacy of service, to make determinations with respect to the adequacy of service and generally to deal with the problems relating thereto. Thus, the Commission 'has general supervision of all * * * telephone corporations * * * and...