| Matter of Long Is. Power Auth. Hurricane SandyLitig. |
| 2015 NY Slip Op 09690 [134 AD3d 1119] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Long Island Power Authority HurricaneSandy Litigation. John Coyle et al., Respondents, v Long Island PowerAuthority et al., Appellants. |
Rivkin Radler LLP, Uniondale, NY (Evan H. Krinick, Michael P. Versichelli, BrianL. Bank, and Michelle A. Bholan of counsel), for appellant Long Island PowerAuthority.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York, NY (John G.Nicolich and Caitlin L. Bronner of counsel), for appellant National Grid ElectricServices, LLC.
Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY (Alexander H.Schmidt, Matthew M. Guiney, and Giti Baghban of counsel), Wolf Popper LLP, NewYork, NY (Michele F. Raphael and Roy Herrera, Jr., of counsel), Parker Waichman LLP,Port Washington, NY (Jerrold S. Parker and Peter J. Cambs of counsel), and Douglas& London, P.C., New York, NY (Michael A. London and Virginia Anello ofcounsel), for respondents (one brief filed).
In a putative class action to recover damages for breach of contract and for injunctiverelief, the defendant Long Island Power Authority appeals, as limited by its brief, from somuch of an order of the Supreme Court, Nassau County (Brandveen, J.), entered April 1,2014, as denied its motion, inter alia, pursuant to CPLR 3211 to dismiss the plaintiffs'class action allegations and cause of action for injunctive relief insofar as asserted againstit, and the defendant National Grid Electric Services, LLC, separately appeals, as limitedby its brief, from so much of the same order as denied its motion, inter alia, pursuant toCPLR 3211 to dismiss the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying those branches of the motions of National Grid Electric Services, LLC, andLong Island Power Authority which were to dismiss the plaintiffs' cause of action forinjunctive relief insofar as asserted against each of them, and substituting therefor aprovision granting those branches of the motions; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
On October 29, 2012, Hurricane Sandy devastated portions of the East Coast,including much of Long Island and the Rockaways. Among the consequencesexperienced by those in the storm's path were extended power outages. In this putativeclass action, the plaintiffs, individually and on behalf of others similarly situated, seekdamages for breach of contract as well as injunctive relief from Long Island PowerAuthority (hereinafter LIPA) and its former management services provider, NationalGrid Electric Services, LLC (hereinafter Grid).
[*2] LIPA made a pre-answer motion, inter alia, pursuantto CPLR 3211 to dismiss the plaintiffs' class action allegations and cause of action forinjunctive relief insofar as asserted against it, and Grid made a separate pre-answermotion, inter alia, pursuant to CPLR 3211 to dismiss the complaint insofar as assertedagainst it. The Supreme Court denied both motions, and LIPA and Grid (hereinaftertogether the defendants) separately appeal.
In examining a complaint in response to a motion to dismiss for failure to state acause of action under CPLR 3211 (a) (7), "[t]he allegations in the complaint, and in anysupporting affidavit, must be taken as true, and the plaintiff must be accorded 'the benefitof every possible favorable inference' " (Cooney v Cooney, 13 AD3d 407, 409 [2004], quotingLeon v Martinez, 84 NY2d 83, 87 [1994]; see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,178 [2011]). A complaint should be read liberally, for if it " 'states, in somerecognizable form, any cause of action known to our law,' it cannot be dismissed"(Cooney v Cooney, 13 AD3d at 409 [citation omitted]).
Those branches of the defendants' motions which were to dismiss or strike the classaction allegations for failure to establish the statutory prerequisites for class certification(see CPLR 901 [a]) were properly denied by the Supreme Court as premature (see Ackerman v New York Hosp.Med. Ctr. of Queens, 127 AD3d 794, 796 [2015]; Bernstein v Kelso &Co., 231 AD2d 314, 323-324 [1997]).
However, the Supreme Court should have granted those branches of the defendants'motions which were to dismiss the cause of action for injunctive relief. "To sufficientlyplead a cause of action for a permanent injunction, a plaintiff must allege that there was aviolation of a right presently occurring, or threatened and imminent, that he or she has noadequate remedy at law, that serious and irreparable harm will result absent theinjunction, and that the equities are balanced in his or her favor" (Caruso v Bumgarner, 120AD3d 1174, 1175 [2014] [citation and internal quotation marks omitted]). "Apermanent injunction is a drastic remedy which may be granted only where the plaintiffdemonstrates that it will suffer irreparable harm absent the injunction" (Merkos L'Inyonei Chinuch, Inc. vSharf, 59 AD3d 403, 408 [2009] [citation and internal quotation marksomitted]).
Turning first to Grid, because the service agreement between it and LIPA has expiredand has not been renewed, and because the harm alleged by the plaintiffs is completerather than ongoing, the plaintiffs cannot allege a " 'violation of a right presentlyoccurring, or threatened and imminent' " (Caruso v Bumgarner, 120AD3d at 1175, quoting Elow vSvenningsen, 58 AD3d 674, 675 [2009]). Accordingly, the Supreme Courtshould have directed dismissal of the plaintiffs' cause of action for injunctive reliefinsofar as asserted against Grid as academic.
As to LIPA, the plaintiffs have adequately alleged a threat of serious and irreparableharm. However, the nature of the injunctive relief sought against LIPA raises questionsof justiciability (see Jiggetts v Grinker, 75 NY2d 411, 415 [1990]). Specifically,the plaintiffs seek an order directing LIPA to comply with the recommendations set forthin (1) the Interim and Final Reports issued by the Moreland Commission on Utility StormPreparation and Response, which was appointed by Governor Andrew Cuomo to "study,examine, investigate, and review the response, preparation, and management of NewYork's power utility companies with respect to Hurricanes Irene and Sandy" as well asthe "adequacy of regulatory oversight of the utilities," and (2) the reports of two priorinvestigations, one conducted at LIPA's request and the other in response to HurricaneIrene. Those reports recommended, among other things, substantial investment in themaintenance of LIPA's infrastructure, including the replacement and updating of itstransmission and delivery and communications systems, as well as changes to thestructure of LIPA's operations. Such recommendations plainly implicate "[b]road policychoices, which involve the ordering of priorities and the allocation of finite resources"which are reserved to the legislative and executive branches of government (Jiggettsv Grinker, 75 NY2d at 415; see e.g. Roberts v Health & Hosps. Corp., 87 AD3d311, 325 [2011]). Accordingly, the Supreme Court should have granted that branchof LIPA's motion which was to dismiss the plaintiffs' cause of action for injunctive reliefinsofar as asserted against it on the ground that it presented questions that arenonjusticiable.
The branch of Grid's motion which was pursuant to CPLR 3211 (a) (1) to dismiss thesecond cause of action insofar as asserted against it on the ground that the plaintiffs arenot third-party beneficiaries of the service agreement entered into between Grid andLIPA was properly denied. "A motion to dismiss pursuant to CPLR 3211 (a) (1) will begranted only if the documentary evidence resolves all factual issues as a matter of law,and conclusively disposes of the plaintiff's [*3]claim" (Fontanetta v John Doe 1, 73AD3d 78, 83-84 [2010] [citations and internal quotation marks omitted]; see AG Capital Funding Partners,L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-591 [2005]). Here, theservice agreement contains a boilerplate provision generally denying the parties' intent tobenefit any third parties "[u]nless specifically set forth herein." However, other sectionsof the service agreement raise issues of fact as to whether the public was an intendedthird-party beneficiary of Grid's contract with LIPA (compare Koch v ConsolidatedEdison Co. of N.Y., 62 NY2d 548, 559 [1984], and Pond v New Rochelle WaterCo., 183 NY 330, 338 [1906], with Moch Co. v Rensselaer Water Co., 247NY 160, 164 [1928]). Accordingly, the Supreme Court properly concluded that thedocumentary evidence submitted by Grid did not conclusively refute the plaintiffs'allegations (see Town ofHuntington v Long Is. Power Auth., 130 AD3d 1013, 1015 [2015]).
The defendants' remaining contentions are without merit. Dillon, J.P., Chambers,Cohen and Hinds-Radix, JJ., concur.