Montalvo v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 06 July 1981
• Citation: 110 Misc.2d 24,441 N.Y.S.2d 768
• Parties: Carmen MONTALVO, on behalf of herself and her infant children, Whenshely Ruiz, Maribel Ruiz, Osdual Ruiz, Wilfredo Ruiz, Jaimes Ruiz, Wanda Ruiz, Harly Ruiz and Warren Ruiz, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., The Public Service Commission of the State of New York, and Ramon Luis Lopez, Defendants.
• Court: New York Supreme Court

Page 768

441 N.Y.S.2d 768

110 Misc.2d 24

Carmen MONTALVO, on behalf of herself and her infant

children, Whenshely Ruiz, Maribel Ruiz, Osdual

Ruiz, Wilfredo Ruiz, Jaimes Ruiz, Wanda

Ruiz, Harly Ruiz and Warren

Ruiz, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., The Public

Service Commission of the State of New York, and

Ramon Luis Lopez, Defendants.

Supreme Court, Special Term, New York County, Part I.

July 6, 1981.

David Goldfarb, Bronx, of Counsel, Michael Hampden, Bronx, The Legal Aid Society, for plaintiff.

Peter H. Schiff, Albany, for defendant, Public Service Comm. of New York State.

Ernest J. Williams, Williams & O'Neil, New York City, for defendant, Consolidated Edison Company of New York, Inc.

NORMAN C. RYP, Judge:

Does 'Power to the People' include constitutional procedural due process besides energy transmissions? This is the nuclear issue of first impression in this current case.

A. INTRODUCTION

Motions, under calendar numbers 4 and 5 of May 27, 1980, are consolidated for disposition, following subsequent final submission. Defendant, Consolidated Edison Company of New York, Inc. ('Con Edison') moves, pursuant to CPLR 3211(a)(2) and (7), to dismiss plaintiff's first and second causes of action for lack of subject matter jurisdiction and failure to state a cause of action. Defendant, The Public Service Commission of the State of New York ('PSC') joins in Con Edison's motions and, also, seeks dismissal of the damage claims against PSC alleged in the first and second causes of action contained in paragraph '72' of the complaint. Plaintiff, Carmen Montalvo, suing upon behalf of herself and her eight (8) infant children, ranging in age from 5 to 17 years of age, cross-moves, under CPLR 3212(e), for partial summary judgment on her first and second causes of action.

B. FACTS

The essential facts are uncontroverted.

Plaintiff, mother of eight (8) minor children, supported solely by semi-monthly grants of $396.50 from the New York City Department of Social Services ('DOSS'), resided prior to October 15, 1978, at No. 315 Fox Street, Apt. 2B, Bronx, New York, where the rent, which plaintiff duly paid, included gas and electrical usage. Con Edison provided utility service, under account No. 31-4909-0540-0040-0, held in the name of defendant, Ramon Luis Lopez ('Lopez'), landlord, as indicated by Con Edison's records (PSC Ex. '2'). Plaintiff, at that time, had no account with Con Edison and had never before applied for utility service.

On October 15, 1978, plaintiff moved from Apt. 2B, No. 815 Fox Street, to Apt. 5G, No. 2108 Davidson Avenue, both in Bronx, New York, and then duly applied to Con Edison for gas and electrical utility service. On that same date, October 15, 1978, Con Edison denied plaintiff's application for utility service alleging she owed $387.40 arrears on her Fox Street apartment (2B) and demanded full payment before furnishing plaintiff any utility services at her Davidson Avenue apartment (5G). Plaintiff contends she informed Con Edison at the time of her application that Lopez, not plaintiff, was responsible for all utility service charges on the Fox Street apartment (2B). Plaintiff's attempts to explain these facts were futile and she was informed by Con Edison that DOSS would allow her a grant to pay this utility bill so as to obtain utility service.

About two (2) weeks later, on November 1, 1978, plaintiff obtained a grant to fully pay Con Edison said amount of $387.40 from DOSS and it appears that on November 10, 1978, twenty-six (26) days after plaintiff's application, Con Edison first commenced utility service to plaintiff at her Davidson Avenue apartment (5G). Plaintiff and her eight (8) infant children lived without any gas or electrical utility service during this entire twenty-six (26) day period. Subject DOSS grant was deemed an advance, which DOSS later recouped over a five (5) month period, by deducting $39.65 installments from nine (9) checks and $30.55 from a tenth (10th) check; said DOSS checks were given plaintiff to provide food and other necessities of life for herself and her eight (8) children.

Three (3) days later, on November 13, 1978, Con Edison billed plaintiff, an additional $520.00 under the Fox Street apartment (2B) account (Plaintiff's Ex. '2'). Plaintiff paid $52.00 on December 6, 1978, believing said monies to be owing on her then current Davidson Avenue apartment (5G) but Con Edison credited to the Fox Street apartment (2B) account.

Thereafter, plaintiff failed to make timely payments to Con Edison on the Davidson Avenue apartment (5G) account partly because $52.00 was applied to the Fox Street apartment (2B) account and partly due to her decreased net social service grant (including the $39.65 DOSS deduction). Thereafter, on January 5, 1979, plaintiff allegedly received notice that $132.60 was owed to Con Edison and payment required therefor to prevent termination of utility service. Five (5) days later, on January 10, 1979, plaintiff's utility service was shut off and terminated. Sixteen (16) days later on January 26, 1979, following effective intervention by the Legal Aid Society and PSC, plaintiff's utility service was restored. Thus, plaintiff was without utility service for a total of forty-two (42) days out of 103 days from October 15, 1978 to January 26, 1979.

Thereafter, three (3) months later, Con Edison forwarded plaintiff a check dated April 17, 1979, in the amount of $300.28 and sent a letter to plaintiff's attorney which stated Con Edison was cancelling 'the accrued charges at 815 Fox Street in Mrs. Montalvo's name' (PSC Ex. 'C').

C. PARTIES' CONTENTIONS

Plaintiff contends: she informed Con Edison immediately upon her October 15, 1978 utility service application that her former landlord, Lopez, not plaintiff, owed the $387.40; Con Edison failed and refused to verify this fact despite its ability to do so but was told Con Edison's decision was final; was never informed of her right(s) to appeal either to a Con Edison supervisor or to an outside authority; was unaware of PSC's existence; was never offered a Spanish interpreter or Spanish speaking Con Edison employee; that the initial billing dispute, caused by Con Edison's wrongfully holding plaintiff responsible for Fox Street apartment (2B) account, had a ripple effect, which caused hardship and deprivation to her entire family for many months, commencing with Con Edison's refusal to provide utility service (from October 15 to November 10, 1978), extending to later termination of utility service (from January 10 to 26th, 1978), lack of monies for food and other necessities of life owing to DOSS nine (9) months' grant deduction as reimbursement for DOSS November 1978 mistaken payment to Con Edison.

Plaintiff further contends residential gas and electrical utility service, upon due application, is a property right and entitlement pursuant to the Due Process Clauses of both the New York State Constitution, Articles 1 and 6, (first cause of action) and the United States Constitution's Fourteenth Amendment (second cause of action); defendants' failure to provide any notice and an opportunity to be heard after refusing plaintiff utility service directly caused all her subsequent personal injuries. Plaintiffs seek a total of $100,000.00 in compensatory damages from all defendants, jointly and severally, based upon personal injuries, substantial hardship, extreme mental and emotional distress, suffering and humiliation; and, in addition, $300,000.00 in punitive damages only against defendants Con Edison and Lopez for their wanton, wilful and malicious acts and omissions.

Defendant, Con Edison, contends the first and second causes of action should be dismissed: its acts or omissions do not constitute 'state action'; plaintiff failed to exhaust her administrative remedies; primary subject-matter jurisdiction to resolve subject-matter utility dispute resides in PSC; any failure by PSC to promulgate rules and regulations is proper subject of a CPLR Article 78 proceeding; therefore, plaintiff fails to state a cause of action, as a matter of law.

Defendant, PSC, contends that both the first and second causes of action should be dismissed: as moot, with utility service having been subsequently provided by Con Edison and that any future disruption in service is governed by PSC Rules and Regulations (16 NYCRR Part II and Part 143); for lack of subject-matter jurisdiction to award monetary damages against PSC, since PSC is a New York State agency that can be sued for money, only in the Court of Claims under the New York State Constitution, Article VI, §§ 8, 9; lack of primary subject-matter jurisdiction which lies with PSC and plaintiff's failure to exhaust her administrative remedies by not first petitioning PSC for the remedial action requested herein; because denial of service does not constitute 'state action' or denial of due process; and that any acts and omissions of Con Edison are not attributable to PSC.

D. APPLICABLE LAW AND CONCLUSIONS OF LAW

I. MOOTNESS OR LACK OF JUSTICIABLE CASE OR CONTROVERSY OWING TO RESTORATION OF UTILITY SERVICE

(a) APPLICABLE LAW

'Judicial reluctance to decide questions which need not be reached should yield when, as here, important constitutional issues are raised and the controversy is of a kind likely to recur.' Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 19, 347 N.Y.S.2d 170, 300 N.E.2d 710 (1973); Matter of Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303 (1975); Matter of Cole v. Goldberger, 95 Misc.2d 720, 410 N.Y.S.2d 950 (Sup.Ct.--Broome Co.--1978). The Court is precluded from finding the controversy is moot if the duration of the challenged action is too short to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complaining party will be subject to the same action again (First National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct....