DECISION AFTER TRIAL

Following Hurricane Sandy, plaintiff lost power in his home for 10 days, and when power was finally restored, he discarded spoiled food that he had stockpiled at his home. As plaintiff persuasively demonstrated at trial, defendant LIPA was "inept and unprepared." If LIPA had performed its duties to customers with ordinary "due care," power would have been restored to customers (like plaintiff) much sooner, and plaintiff's losses, if any, would likely have been minimal.

Plaintiff's proof on this point rests, in large part, upon the public findings of the New York State Moreland Commission on Utility Storm Preparation and Response. The Commission was established under the Moreland Act (Section 6 of the New York State Executive Law) to study, examine, investigate, and review the response, preparation, and management of New York's power utility companies with respect to Hurricane Sandy and other storms. "[I]t has long been held that a court can take judicial notice of the conditions disclosed by the report of a commission directed by the Legislature to investigate and report upon a subject." Cass v State of New York, 109 Misc 2d 107, 112-113 (Sup Ct Albany Co., 1981), rev'd on other gnds, 88 AD2d 305 (3d Dept 1982), mod. 58 NY2d 460 (1983); see also Cockcroft v Mitchell, 101 Misc 211, 216 (Sup Ct NY Co. 1916), affd 187 AppDiv 189 (1st Dept 1919), affd 230 NY 630 (1921) (court took judicial notice of findings respecting factory conditions as contained in report of a state commission formed after the 1911 Triangle Waist Company fire).

Without objection from defendant, the Court has taken judicial notice of the Commission's recently published interim report. According to that interim report, dated January 7, 2013, LIPA's "emergency planning" was plagued by "confusion and inefficiencies that hamper[ed] expedient response during an actual emergency." The Commission "heard account after account of LIPA's inability to communicate accurate, real-time information about outages and restoration" of electric service to its customers after the storm. Hurricane Sandy "was not an unanticipated storm event." However, a "re-energization and inspection plan" was not developed until many customers "had been without power for over a week."

Moreover, LIPA's "Outage Management System" was plainly "archaic." The [*2]system was based on an old "COBOL application" and had been "patched together over many years." Such an "antiquated" system directly "contributed to communications issues and lack of estimated restoration times." Consequently, the absence of a "comprehensive" Outage Management System appears to have multiplied the likelihood that customers, like plaintiff, would incur financial losses involving spoiled food caused by extensive and lengthy delays in restoring power.

These facts, persuasively documented, make a strong case for awarding damages to the plaintiff. UDCA §1804 provides that a court hearing a small claims matter "shall conduct hearings...in such manner as to do substantial justice between the parties..." As between plaintiff and defendant, principles of "substantial justice" ordinarily would result in a decision holding the LIPA liable for consequential damages caused by its negligent actions.

However, the Court's ability to make such an award is limited by a statutory proviso that small claims decisions must be made "according to the rules of substantive law." UDCA §1804. Were the Court to grant an award that deviates from the rules of substantive law which apply to a customer's claims against a public utility, it would be subject to reversal, on appeal, pursuant to UDCA §1807. See Lockwood v Niagara Mohawk Power Corp., 112 AD2d 495, 496 (3d Dept 1985).

In the final analysis, the Court's duty is to apply the law as announced by higher courts to the facts at hand. Regrettably, higher court decisions have made plain that public utilities, like LIPA, may avoid liability for ordinary negligence through adoption of exculpatory tariff provisions. LIPA's tariff includes such provisions. See Leaf 27 of LIPA's published tariff ("The Authority will not be liable ... [f]or interrupted, irregular, defective or failed service if the causes are beyond the Authority's control or are due to the ordinary negligence of its employees or agents"). When a utility adopts a tariff like this, it has no liability for a customer's losses "unless it is found to be grossly negligent." See e.g. Lockwood v Niagara Mohawk Power Corp., supra (reversing small claims judgment in favor of utility customer for refrigerator damage caused by utility's alleged negligence after a storm, in the absence of proof of utility's "gross negligence"); see also Schlesinger v Con Edison Company, 2003 NY Slip Op 51493 (Civ Ct Kings Co) (rejecting claim seeking recovery of damages for food spoilage after a blackout where plaintiff presented no evidence that Con Edison caused the blackout, where utility submitted proof that it made "reasonable efforts to restore service as soon as practicable"); compare Food Pageant, Inc. v Consolidated Edison Co., Inc., 54 NY2d 167 (1981) (general verdict awarding food spoilage damages against utility upheld upon proof of "gross negligence" which "precipitated" a major power outage and which "could have contributed to the eventual blackout").

Gross negligence, by definition, involves a "failure to exercise even slight care." See Schlesinger v Con Edison Company of New York, supra, quoting Food Pageant, Inc. v Consolidated Edison Co., Inc., supra, 54 NY2d at 172. Based upon the Moreland [*3]Commission report as a whole, considered together with the trial testimony of a LIPA witness, Gregory Goode, the Court cannot find defendant guilty of "gross negligence" as defined.

Unlike the circumstances presented in the New York City blackout case against Consolidated Edison which resulted in an award of damages for food spoilage, Food Pageant, Inc. v Consolidated Edison Co., Inc., supra, no claim is made that LIPA somehow caused or contributed to the power outage. To the contrary, as found by the Moreland Commission, "Hurricane Sandy was a unique storm which caused an unprecedented interruption of service to LIPA customers..." The resulting "power outage" was "inevitable" and was on a scale which "would take days for restoration under optimal conditions."

Equally important, as LIPA's witness credibly established at trial, LIPA's preparatory actions included at least some advance planning, and its post-storm efforts included "priority-based" targeting of critical facilities (i.e. hospitals) and the importation of thousands of off-Island crews to facilitate restoration of power to more than a million customers. While the adequacy of such actions have rightly been criticized by the Moreland Commission and others, LIPA's negligence, however palpable, was not so "gross" as to be actionable in cases like this one.

Finally, under applicable higher court decisions, this Court cannot conclude that a ruling in LIPA's favor would violate public policy. See Lee v Consolidated Edison Co. of New York, 98 Misc 2d 304 (App Term 1st Dept 1978). Since plaintiff failed to prove that LIPA was guilty of gross negligence, plaintiff's small claims complaint must be DISMISSED.

So Ordered:

District Court Judge

Dated:July 30, 2013

cc:Rivkin Radler

Robert Balacki pro se