Rodriguez v. Orange and Rockland Utilities, Inc.
Decision Date | 06 October 1986 |
Citation | 123 A.D.2d 613,506 N.Y.S.2d 888 |
Parties | Doril RODRIGUEZ, et al., Respondents-Appellants, v. ORANGE AND ROCKLAND UTILITIES, INCORPORATED, Appellant-Respondent. |
Court | New York Supreme Court — Appellate Division |
LeBoeuf, Lamb, Leiby & MacRae, New York City (Grant S. Lewis and Nancy I. Ruskin, of counsel), for appellant-respondent.
Sheldon V. Burman, P.C., New York City (Elliot B. Pasik, of counsel), for respondents-appellants.
Before MOLLEN, P.J., and RUBIN, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover attorney's fees pursuant to 16 U.S.C. § 2632, the defendant appeals (1) from so much of an order of the Supreme Court, Rockland County (Burchell, J.), entered on or about December 6, 1984, as denied the defendant's motion for summary judgment and granted the plaintiffs' cross motion for summary judgment, and (2) as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Burchell, J.), entered June 24, 1985, as, upon reargument, adhered to the original determination, except to the extent that the court conditioned the entitlement to attorney's fees upon the absence of an alternative means of representation as defined in 16 U.S.C. § 2632(b), and the plaintiffs cross-appeal from so much of the order entered June 24, 1985, as conditioned the award of attorney's fees upon the plaintiffs demonstrating the nonexistence of an alternative means of representation.
Appeal from the order entered on or about December 6, 1984, dismissed. That order was superseded by the order entered June 24, 1985, made upon reargument.
Order entered June 24, 1985, modified, on the law, by deleting the provision thereof requiring the plaintiffs to demonstrate the nonexistence of an alternative means of representation. As so modified, order affirmed insofar as appealed from.
The plaintiffs are awarded one bill of costs.
The plaintiffs, who are low-income consumers of electrical power provided by the defendant pursuant to the Public Utility Regulatory Policies Act of 1978 (hereinafter PURPA), successfully intervened in a rate-making proceeding which had been conducted by the New York State Public Service Commission, to consider a request by the defendant for a rate increase. At said hearing, the plaintiffs were represented by the Public Utility Law Project (hereinafter PULP), a State and federally funded law firm which was organized to represent the interests of low-income utility consumers of New York State before State administrative agencies. The plaintiffs were never charged by PULP for the legal representation provided at the hearing. During the course of the rate proceedings, PULP actively participated by presenting expert witnesses and by effectively cross-examining the experts presented by other parties. At the conclusion of the hearing, PULP moved for and ultimately obtained a declaration from the Public Service Commission that the law firm had made a "substantial contribution" within the meaning of PURPA, to the adoption of certain Federal electric rate standards. The plaintiffs thereafter commenced the instant action to recover attorney's fees as well as the costs and disbursements incident to their successful intervention in the rate-making proceeding, pursuant to 16 U.S.C. § 2632, which specifically provides for an award of counsel fees and costs to consumers who have "substantially contributed" to the approval of a position advocated by such consumer before a State regulatory authority.
Following joinder of issue, both parties moved for summary judgment. The defendant, in support of its position, argued that, as a matter of law, it could not be held liable for attorney's fees inasmuch as the plaintiffs had been represented by a publicly-funded law firm and, therefore, did not incur any legal expenses. The plaintiffs, on their part, contended that the clear legislative intent of PURPA was to give utility consumers access to legal and technical representation before the State regulatory agency, and that the award of attorney's fees was authorized by the statute to compensate for the services rendered in connection with successful intervention in a rate-making proceeding. The plaintiffs further maintained that the defendant's liability for said fees could readily be decided solely by reference to the motion papers and that the matter was, therefore, ripe for summary disposition.
In December 1984 Special Term, relying upon the decision of the Supreme Court, Onondaga County, in United Tenants of Albany v. Niagara Mohawk Power Corp., 127 Misc.2d 957, 487 N.Y.S.2d 467, affd. 115 A.D.2d 978, 497 N.Y.S.2d 1019, which addressed virtually the identical issue raised herein, held that the intervenor-plaintiffs, who were found to have made a "substantial contribution" to the rate-making process, were statutorily entitled to an award of attorney's fees, notwithstanding the fact that the plaintiffs did not actually incur any legal fees, having been represented by a publicly-funded law firm. The court noted, however, that once the fees for services rendered were fixed, the defendant would be entitled to an offset against the amount of the award for any grants received by PULP from public sources in connection with the performance of the services provided.
Subsequent to the issuance of the foregoing order, the defendant moved for reargument on the ground that Special Term had either overlooked or neglected to consider that pursuant to 16 U.S.C. § 2632(b), entitlement to attorneys' fees is conditioned upon the absence of alternative means of adequa representation or of compensation for the services actually rendered. More specifically, the defendant alleged that the New York State Consumer Protection Board ...
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