Cite as: Schlesinger v. Con Edison Co. of NY, Inc., 6142/03, NYLJ 1202578798756, at *1 (Civ., KI, Decided December 16, 2003)

Justice Arthur Schack

Decided: December 16, 2003

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of the motion to dismiss this action by defendant, dated October 15, 2003.

Papers Numbered

Notice of Motion/Motion with Affidavits/Affirmations and Memorandum of Law Annexed:1 [exhibits numbered]

Reply Affidavits/Affirmations with Exhibits:

Affirmation in Opposition and Exhibits Annexed:




Claimant commenced this action on August 26, 2003 to recover $350.00 in damages for "defective services rendered and loss of property on 08-14-2003," as result of the August 14, 2003 blackout. The blackout affected tens of millions of people in the northeast and north central United States, as well as parts of Ontario and Quebec. The case was set for trial on October 1, 2003. On September 19, 2003, the parties, by stipulation, agreed to adjourn the case to November 6, 2003. Defendant, on October 15, 2003, moved to have the action dismissed. Claimant, a pro se litigant, did not prepare any opposition papers.

On November 6, 2003, I heard oral argument by the parties on defendant's motion to dismiss. Claimant, a resident of the Sea Gate section of Brooklyn, informed the Court that prior to the blackout he had planned to hold a weekend barbeque at his home. He had purchased lobster and other seafood which were stored in his refrigerator and freezer. In their oral arguments, both claimant and defendant agreed that the blackout commenced on Thursday, August 14, 2003 at about 4:11 P.M., and that power was not restored to claimant's home until the evening of Friday, August 15, 2003. Clearly, claimant was without electric service for more than twenty-four hours and spoilage of the seafood and other perishables in his refrigerator and freezer were probable.

While Mr. Schlesinger is the presumptive "David" attempting to use this claim as the rock in his legal slingshot to recover from the "Goliath" utility. However, he cannot prevail. Claimant's legal rock has missed "Goliath" Con Edison. Defendant's motion to dismiss, in the absence of claimant showing any "gross negligence" or malfunction in Con Edison's local distribution system as a cause of the August 14, 2003 blackout, must be granted.




Standard for Summary Judgment

Defendant's motion to dismiss is essentially a motion for summary judgment. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957).

CPLR §3212 (b) requires that for a court to grant summary judgment, the court must determine if the moving party's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).

In Exhibit A of their motion, Con Edison presents the lengthy affidavit of Michael Forte, their Chief Engineer for Transmission Planning. Mr. Forte describes Con Edison's distribution system and the August 14, 2003 shut down of Con Edison's system. He cites the September 12, 2003 U.S.-Canada Task Force initial report, "August 14, 2003 Outage Sequence of Events," which notes that the events causing the blackout did not occur in Con Edison's local distribution system, but in Michigan, Ohio and Pennsylvania. He then explained in paragraph 19 that the restoration of service "has to be done very carefully, methodically and in coordination with others. The process takes many hours." He concluded in paragraph 22 that "[n]o investigation has indicated any negligence on Con Edison's part or any failure in its local distribution system." Mr. Forte's statements and conclusions were not rebutted by claimant.

Tariff and Gross Negligence Standard

Pursuant to Sections 65 and 66 of the Public Service Law, electric utilities have a tariff or rate schedule filed with the Public Service Commission (PSC). The tariff is the State approved




contract setting forth the terms and conditions between the utility (Con Edison in the instant case) and its customers. In Lee v. Consolidated Edison Company of New York, 98 Misc2d 304, 305-306 (App Term 1st Dept, 1978) the Court stated:

As a public utility, defendant [Con Edison] is requested by the Public Service Commission, and is required to file with the Commission a schedule showing all rates and charges made and all rules and regulations relating to rates (Public Service Law, s 65, subd. 5; s 66, subd. 12)…Once accepted by the Commission, the tariff schedule (including the limitation of liability provision) takes on the force and effect of law and governs every aspect of the utility's rates and practices; neither party can depart from the measure of compensation or standard of liability contained therein (Public Service Law, s 66, subd. 12). [Emphasis added]

Con Edison's tariff, pursuant to CPLR 4540 (d), is prima facie evidence and must be accepted by the Court in rendering any decisions regarding the supply of electricity. In Leaf No. 11 of Con Edison's tariff with the PSC, [exhibit C of defendant's motion], and pursuant to Lee v. Consolidated Edison Company of New York, all applicants for electric service from Con Edison accept the terms and provisions in Con Edison's tariff.

Leaf No. 62-A, Section 14 (A) [exhibit C of defendant's motion] of Con Edison's tariff with the PSC concerns Con Edison's liability for an interruption of electric service. It states that Con Edison:

will endeavor at all times to provide a regular and uninterrupted supply of service, but in case the supply of service shall be interrupted or irregular or defective or fail from causes beyond its control or through ordinary negligence of employees, servants or agents, the Company will




not be liable therefor.

Claimant, in the instant case, has failed to present any evidence of Con Edison's negligence. The above tariff provision exempts Con Edison from liability to a customer even when the interruption of power results from causes beyond its control or the ordinary negligence of its employees. Further, the limitation of liability on Con Edison and other utilities does not violate public policy. See Lockwood v. Niagara Mohawk Power Corp., 112 AD2d 495 (3d Dept 1985); Newman v. Consolidated Edison Co., Inc. 79 Misc2d 153 (App Term, 2d & 11th Jud Dists 1973); Devers v. Long Island Lighting Company, 79 Misc2d 165 (App Term, 9th & 10th Jud Dists 1974); Lee v. Consolidated Edison Company of New York, supra.

Leaf No. 63-A, Section 14 (A) [Exhibit C of defendant's motion] of Con Edison's PSC tariff limits the liability of defendant Con Edison, but states, "[t]his provision shall not affect the Company's liability for damages resulting from its gross negligence or wilful misconduct." In Food Pageant, Inc., v. Consolidated Edison Co., Inc., 54 NY 2d 167 (1981), a Bronx grocery chain sued Con Edison to recover for food spoilage and loss of business from the July 13, 1977 blackout. A Bronx Supreme Court jury awarded plaintiff $40,500 in damages. The First Department affirmed. A unanimous Court of Appeals affirmed, instructing at 172:

Before submitting the case to the jury, the trial court instructed its members that they could return a verdict for the plaintiff only if they found that defendant had been grossly negligent. As Trial Term recognized, under the terms of Con Edison's rate schedule, the utility cannot be held liable for interruption of service due to the ordinary negligence of its agents and employees. It does, however, remain liable for gross negligence. In Weld v. Postal Telegraph-Cable Co., 199 N.Y. 88, 98, 92 N.E. 415, this court recognized that the liability of a public utility should be limited to damages arising from the utility's willful misconduct or gross negligence…Briefly, gross negligence had been termed as the failure to exercise even slight care.




[emphasis added]

Warren v. New York Telephone Co., 70 Misc2d 794 (Civ Ct, New York County 1972), a small claims action, states, at 797:

[G]ross, or culpable negligence, implies very great negligence and the want of even scant care. It has been defined as "disregard of the consequences which may ensue from the act, and indifference to the rights of others." (People v. Angelo, 246 N. Y. 451, 457; Carlson Constr. Co. v. New York Tel. Co., 45 Misc 2d 229, 233 [Sup. Ct., Suffolk County, 1964]).

A showing of ordinary negligence, will not entitle claimant to a judgment against Con Edison. Negligence is defined in PJI3d 2:10 [2003] as:

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.

In Lockwood v. Niagara Mohawk Power Corp., supra, the Third Department reviewed three cases that commenced in the Small Claims Part of Cortland City Court. Plaintiffs were seeking compensation for damages that occurred to their refrigerator motors when a storm damaged power lines. Plaintiffs prevailed in Cortland City Court and were affirmed by Cortland County Court. The Third Department reversed and dismissed plaintiffs' complaints, basing its decision upon the language in Niagara Mohawk's tariff (identical to Con Edison's tariff). The Court, at 496, held:




we are constrained to conclude that none of the plaintiffs proved that the power failure was proximately caused by any conduct of defendant (see Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738). Finally, plaintiffs' contention that defendant was grossly negligent in deciding not to turn off power completely and leaving it at a low-voltage condition is not supported by any competent evidence in the record.

Courts have repeatedly adhered to requiring a showing of gross negligence for a party to prevail against a utility. In Newman v. Consolidated Edison Co., Inc., supra, the Appellate Term for the 2d and 11th Judicial Districts held, at 154:

defendant is not liable for the interruption of its supply of service arising from the ordinary negligence of its employees, servants or agents. The Public Service Commission has approved this limited exemption from liability, in the valid exercise of its powers (Public Service Law s 66, subds. 5 and 12; see Matter of Leitner v. New York Telephone Co., 277 N.Y. 180, 13 N.E.2d 763). There is no attempt to absolve Consolidated Edison from liability for its gross negligence. Moreover, since the scope of the exemption is limited to those acts which disrupt the regular supply of service, it does not violate public policy (Hamilton Employment Service, Inc. v. New York Telephone Co., 253 N.Y. 468, 171 N.E. 710) and is lawful (Public Service Law s 65, subd. 5).

Newman was followed by Devers v. Long Island Lighting Company, supra, in which the




Appellate Term for the 9th and 10th Judicial Districts held:

The Public Service Commission, in defendant's rate schedule, has approved a limited exemption from liability for ordinary negligence, in the valid exercise of its powers, and since it has not attempted to absolve defendant from gross negligence, such rule is lawful, and not violative of public policy.

In Lee v. Consolidated Edison, supra, the Appellate Term for the First Department followed the same position.

Recently, in MMCM Corp. v. Con Edison, 186 Misc2d 437 (App Term, 1st Dept 2000), an appeal arising from a 1999 disruption of electric service in the Washington Heights section of Manhattan, the Court held, at 438:

[L]iability was improperly imposed below, since it was not shown that the interruption of plaintiffs' electrical service resulted from defendant Con Edison's "gross negligence or willful misconduct" as required by the defendant's filed tariff (see, Lockwood v. Niagara Mohawk Power Corp., 112 A.D.2d 495, 491 N.Y.S.2d 211; Lee v. Consolidated Edison Co., 98 Misc.2d 304, 413 N.Y.S.2d 826). Moreover, there is no competent proof in the record to support the awards of damages. Since plaintiffs cannot prevail "according to the rules and principles of substantive law" (CCA 1807), the small claims actions must be dismissed. [Emphasis added]

In the instant case, none of the available evidence and information gathered by various investigating federal, state, international and corporate agencies indicate that the August 14, 2003 blackout was due to factors under the control of Con Edison or that it involved its local distribution system. Claimant has not established that Con Edison was grossly negligent in causing the August 14, 2003 blackout. On the contrary, the evidence before the Court is that




Con Edison was not negligent in causing the August 14, 2003 blackout.

Tariff Food Spoilage Exception

There are two exceptions to Con Edison's limitation from liability except for gross negligence. Article 14, Leaf 63-A of Con Edison's Rate Schedule (Exhibit C of motion) provides that Con Edison will reimburse residential customers for food spoilage up to $350 and commercial customers for spoilage of perishable merchandise up to $7,000, for

…losses of power attributable to malfunctions in the local distribution system, when the condition persists for a period in excess of 12 hours or when the same Customer is subjected to two or more such conditions aggregating 12 hours or more within a 24-hour period. [Emphasis added]

Article 14, Leaf 63-A of Con Edison's tariff states that the local distribution system "shall include lines and cables of 33 Kv or less and associated equipment but shall exclude equipment associated with lines of higher voltage or with the generation of electricity and shall also exclude meters…"

Under this section of the tariff, expressly excluded from liability are:

losses of power attributable to deficiencies in generation or transmission facilities, for losses of power arising from the New York Independent System Operator or to conditions beyond the Company's control, such as storms, floods, vandalism, strikes or fires or accidents external to the Company's operations as long as reasonable efforts are made to restore service as soon as practicable. [Emphasis added]

The affidavit of Michael Forte, Con Edison's Chief Engineer for Transmission Planning (Exhibit A of motion) makes plain that the August 14, 2003 blackout was not caused by malfunctions in Con Edison's local distribution system, but malfunctions in the generation of




electricity by utilities hundreds of miles from Con Edison's service area. Con Edison purchased electricity from these providers. These conditions, external to defendant's operations, have been implicated as the blackout's cause. Therefore, claimant cannot recover for food spoilage or otherwise. Further, Con Edison made "reasonable efforts to restore service as soon as practicable," as per the Rate Schedule. Unfortunately for claimant, his neighborhood was one that had to wait longer than most for service restoration.


This Court finds that the evidence gathered to date indicates that the August 14, 2003 blackout resulted from events outside of Con Edison's service area and was not caused by a failure of Con Edison's local distribution system. No evidence has been presented proving that Con Edison was either negligent or grossly negligent in causing the August 14, 2003 blackout. Con Edison restored service as soon as practical. Under the circumstances in the instant case, there is no liability by defendant for claimant's food spoilage and therefore for any damages proximately caused by the August 14-15, 2003 interruption of electric service to claimant's premises.

Therefore, defendant Con Edison's motion to dismiss this action is granted.

The instant case is dismissed.

This constitutes the decision and order of the court.