[*1]
Fratianni v Orange & Rockland Utils., Inc.
2015 NY Slip Op 50047(U) [46 Misc 3d 1212(A)]
Decided on January 19, 2015
Just Ct Of Vil Of Spring Valley, Rockland County
Desir, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 19, 2015
Just Ct of Vil of Spring Valley, Rockland County


Gregory Fratianni, Plaintiff,

against

Orange & Rockland Utilities, Inc., Defendant.




14-100231



Plaintiff, pro se.



Defendant, Daniel J. Perretti, Claims Manager


Djinsad Desir, J.

In this small claims matter, Plaintiff Gregory Fratianni ("Plaintiff") brings a claim against Defendant Orange & Rockland Utilities Inc. ("Defendant" or "O & R") for damages it allegedly caused to Plaintiff's air conditioning unit on July 24, 2014. Plaintiff is seeking a judgment in the amount of $3,000.00. On November 19, 2014, the parties appeared before the court for the hearing of this matter.



The defendant made a pre-hearing motion to dismiss the claim on the grounds that O & R's tariff (Defendant's Exhibit B), filed with the Public Service Commission, gives the defendant immunity from liability for damages caused by interruptions of the supply of service except for service interruptions caused by its gross negligence. In opposition, Plaintiff argued that the tariff does not apply because there was no service interruption. Instead, Plaintiff claimed Defendant's employees turned the power off and on at a "box" on their street several times over the course of two hours on the day in question. Afterwards, Plaintiff's air conditioning unit was inoperable even though it was functioning properly before the Defendant's actions. The court reserved decision on the motion and the hearing proceeded.



Plaintiff and Plaintiff's wife, Joanne Fratianni, testified that they hired an engineer in July 2014 to test their home for higher than normal electromagnetic field readings. The engineer found readings higher than normal and advised the Fratiannis to contact O & R. O & R, while either troubleshooting or repairing the issue from the street outside the Plaintiff's home, on July 24, 2014 switched the power on and off a number of times during a two hour period after which Plaintiff's air conditioning unit was damaged. Mrs. Fratianni testified that none of Defendant's employees advised them to shut off any appliances before power to their home was turned off and on and there was testimony that [*2]the air conditioner was working before O & R began work on July 24, 2014. Plaintiff testified that the service person they hired to attempt to repair the air conditioning unit showed him the burned out components of the unit and advised it would be more cost effective to replace the entire unit than it would be to replace just the compressor that was damaged. The court admitted into evidence two invoices signed by Plaintiff's service person (one for $95.00 and another for $3,500.00, together Defendant's Exhibit A) for the service call and the cost of replacing the air conditioning unit.



Defendant did not dispute testimony of the Plaintiff and Mrs. Fratianni. Instead, Defendant argued at the hearing that the Fratiannis, despite their insistence to the contrary, did in fact testify to acts which constitute a service interruption. As such, absent a showing of gross negligence, the claim against the defendant should be dismissed. This is the entirety of the Defendant's defense.



The court found the Fratiannis' testimony, all of which was undisputed, to be credible.[FN1] O & R owed a duty of reasonable care to Plaintiff. Since Plaintiffs testified that their air conditioner was operational immediately prior to O & R's work and stopped working immediately afterwards, this creates a sufficient inference that Defendant's actions were the cause of the damage to Plaintiff's air conditioner and that Defendant's employees were ordinarily negligent in doing so under a theory of res ipsa loquitur ("the thing itself speaks").[FN2] It is undisputed that O & R's workers switched power on and off several times within the 2 hours span they worked on the electrical issue from outside the Plaintiff's residence and that immediately afterwards, the air conditioning was no longer operational. It cannot be disputed that the power supply and the equipment on the street was under the exclusive control of O & R. Importantly, it is also undisputed by Defendant that O & R caused the damage and there was no allegation that Plaintiff contributed to the damage. Defendant relies solely on its motion to dismiss based on the liability exemption in the tariff. The Plaintiff's claim and the Defendant's defense both turn on whether the tariff applies to prevent Plaintiff to recover for Defendant's ordinary negligence.



The court finds that the tariff does not apply to the facts of this case. "The tariff contemplates a situation where service is interrupted over a large area, as in a blackout, where defendant could be subject to numerous lawsuits possibly resulting in large verdicts necessitating a substantial increase in rates." Krasner v. New York State Electric & Gas Corp., 90 AD2d 921, 922 (3rd Dep't 1982). See also Brooklyn Union Gas Co. v. MacGregor's Custom Coach, Inc., 122 Misc 2d 287, 293 (NY Civ. Ct. 1983) ("The limitations of liability in [the] tariff to gross negligence is not applicable to the intentional termination of the service of one customer. It applies rather to liability to the public as [*3]a whole for incidents such as blackouts, or negligently caused accidents."). Here, the court finds that the service interruption was not due to a blackout or other incident that affected a large area or more than one customer of the utility company. Instead, Defendant caused the service interruption in order to troubleshoot a specific and localized electrical problem at Plaintiff's home.



Moreover, the Plaintiff's undisputed testimony was that it was not just a service interruption that caused the damage but that it was the back and forth between interrupting and restoring service that caused the damage. The tariff must be strictly construed against the Defendant and there is no liability exemption in the tariff for the Defendant's own negligence in restoring service to its customer. See Krasner v. New York State Electric & Gas Corp., 90 AD2d 921, 922 (3rd Dep't 1982) ("The tariff attempts to limit defendant's liability for its own negligence and such exculpatory clauses are strictly construed against the party seeking exemption from liability strict construction is even more necessary in view of defendant's superior bargaining position."). See also Lo Vico v. Consolidated Edison Co., 99 Misc 2d 897, 898 (App. Term 2nd Dept. 1979) ("We note that as to damages resulting from the supply or use of electricity, as opposed to damages caused by the interruption of the supply of service, the utility is not absolved from liability for its ordinary negligence.") Since it is undisputed that it was the back and forth between the interruption and restoration of the supply of service several times outside of Plaintiff's home that caused the damage to Plaintiff's air conditioner, the court finds that this constituted a course of action that falls outside the specific language in the tariff that grants a liability exemption. Therefore, a finding of damages caused by ordinary negligence, as the court finds here, allows the Plaintiff to recover its damages from the Defendant.



Accordingly, Defendant's motion to dismiss is denied and the court grants judgment in favor of the Plaintiff in the amount of $3,000.00. This constitutes the decision and order of the court.



So Ordered,



_______________________



Hon. Djinsad Desir



Village Justice



Spring Valley Justice Court



Dated: January 19, 2015

Footnotes


Footnote 1:Plaintiff's testimony could not be disputed as Defendant did not offer a witness to contradict Plaintiff's testimony, never mind a witness with personal knowledge of any relevant facts. Defendant was represented by one of its claims managers at the hearing.

Footnote 2:Negligence under a theory of res ipsa loquitur is found where (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (19 NY2d at 430, quoting Prosser, Torts § 39, at 218 [3d ed].). Morejon v. Rais Constr. Co., 7 NY3d 203, 209 (2006).