Timm v. New York State Public Service Com'n
| Citation | 534 N.Y.S.2d 466,144 A.D.2d 139 |
| Parties | In the Matter of William TIMM, Appellant, v. NEW YORK STATE PUBLIC SERVICE COMMISSION et al., Respondents. |
| Decision Date | 20 October 1988 |
| Court | New York Supreme Court Appellate Division |
Edward Thomas McCormack, Garrison, for appellant.
Robert A. Simpson, Albany (Jonathan D. Feinberg of counsel), for respondent, NYS Public Service Com'n.
Ernest J. Williams, New York City (Maura A. Kilroy, of counsel), for respondent, Consol. Edison of New York.
Before MAHONEY, P.J., and CASEY, WEISS, MIKOLL and HARVEY, JJ.
Appeal from a judgment of the Supreme Court (Hughes, J.), entered March 26, 1987 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Service Commission sustaining the backbilling of petitioner's account by respondent Consolidated Edison Company of New York, Inc.
On March 12, 1981, a meter reader employed by respondent Consolidated Edison Company of New York, Inc. (hereinafter Con ED) entered petitioner's home in the Town of New Castle, Westchester County, to read the electric meter. The employee found the meter hung upside down, a position that could cause the meter to register in reverse proportion to the amount of electricity used in the home. The hooks on which the meter hung were observed to be worn down, indicating that the meter had been reversed many times. Wires were observed around the meter which appeared to divert electrical current away from the meter. The meter reading itself indicated that it was 50-kilowatt hours lower than it had been on February 9, 1981, the date of the last reading. This reduction would have been impossible without tampering. Apparently, the tampering consisted of turning the meter upside down and diverting electric current away from it, and then changing it to the upright position before the arrival of the meter reader and permitting it to advance slightly beyond the prior month's reading to indicate that at least some electricity was used by the household. Obviously the tamperer had failed to do this before the reading of March 12, 1981.
When this tampering was reported to Con Ed, petitioner's past readings and bills were investigated, and the investigation revealed that petitioner's electricity consumption had fallen drastically after July 9, 1976. By using the average per day metered consumption from July 10, 1975 to July 9, 1976, Con Ed computed petitioner's consumption of electricity from July 9, 1976 until March 12, 1981 at a total of $4,337.63 and backbilled petitioner for that amount of service.
Petitioner wrote a letter of complaint to respondent Public Service Commission (hereinafter the PSC) about the backbilling, suggesting that Con Ed's employee, Alfred LoMonaco, was responsible and that LoMonaco had been "subsequently convict of fraud and extortion in an unrelated case". Petitioner requested that a monthly breakdown of the backbilling be provided him. The PSC investigated and found petitioner's complaint unfounded. An informal hearing held before a PSC Hearing Officer on December 2, 1981 resulted in a determination that Con Ed's backbilling was proper. Petitioner appealed this determination administratively and requested a full evidentiary hearing so that LoMonaco could be cross-examined. The PSC upheld the Hearing Officer's determination and denied petitioner's request for a formal hearing. Petitioner commenced this CPLR article 78 proceeding to annul the PSC's determination. Supreme Court dismissed the petition and petitioner appeals...
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