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Ahmed v. Consolidated Edison Co. of N.Y.

ConEd Not Immune From Liability for Property Damage Caused by Own Negligence

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DECISION AND ORDER

*1  In this proceeding for property damage, defendant moves seeking an order pursuant to CPLR §3211(a)(2), dismissing pro se plaintiff’s action on grounds that the Court lacks the requisite subject matter jurisdiction to hear it. Saliently, defendant contends that as a public utility, its liability or lack thereof for damages caused by the interruption of electrical service is governed by the Rate Schedule filed with the Public Service Commission, which makes defendant immune from liability arising from damage to a customer’s property. Plaintiff orally opposes the instant motion, asserting that defendant’s negligence damaged his property. For the reasons that follow hereinafter, defendant’s motion is denied.This is a Small Claims action, wherein plaintiff alleges that the refrigerator in his home was damaged by power surges caused by work being performed by defendant at or near plaintiff’s premises. The small claims complaint alleges that on April 14, 2017, while within his premises, located at 1468 White Plains Road, Bronx, NY, defendant was performing work outside his home. It is alleged that in the performance of said work, defendant repeatedly turned off the power causing damage to plaintiff’s refrigerator.Defendant’s motion is denied insofar as the complaint alleges damage to plaintiff’s property resulting from work being negligently performed by defendant1; circumstances which, if true, do not exempt defendant from liability.On a motion to dismiss for want of subject matter jurisdiction, CPLR §3211(a)(2) authorizes dismissal, where “the court has not jurisdiction of the subject matter of the cause of

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