| Heeran v Long Is. Power Auth. (LIPA) |
| 2016 NY Slip Op 05486 [141 AD3d 561] |
| July 13, 2016 |
| Appellate Division, Second Department |
[*1]
| William Heeran, Individually and on Behalf of HarborLight Enterprises Corp. and Another, et al., Respondents, v Long Island PowerAuthority (LIPA) et al., Appellants, et al., Defendants. |
Lazer, Aptheker, Rosella & Yedid, P.C., Melville, NY (David Lazer andZachary Murdock of counsel), for appellant Long Island Power Authority (LIPA), andHammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY(William J. Croutier, Jr., Erin N. Mackin, and Anton Piotroski of counsel), for appellantNational Grid Electric Services, LLC, incorrectly sued herein as Keyspan ElectricServices, LLC (one brief filed).
Sullivan & Galleshaw, LLP (Keith M. Sullivan of counsel), and Godosky& Gentile, P.C. (Anthony P. Gentile of counsel) (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for respondents.
In an action, inter alia, to recover damages for negligence, the defendant Long IslandPower Authority (LIPA) appeals, and the defendant National Grid Electric Services,LLC, incorrectly sued herein as Keyspan Electric Services, LLC, separately appeals,from an order of the Supreme Court, Queens County (Siegal, J.), entered July 9, 2014,which denied their joint motion pursuant to CPLR 3211 (a) (7) to dismiss the amendedcomplaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiffs, who sustained property damage in the wake of Hurricane Sandy, seekto hold the defendants responsible in negligence. According to the amended complaint,the plaintiffs were owners of real and personal property on the Rockaway Peninsula inQueens. They also were customers of the defendants Long Island Power Authority(LIPA), a public authority (see Public Authorities Law § 1020 etseq.), and National Grid Electric Services, LLC (hereinafter NGES), incorrectly suedherein as Keyspan Electric Services, LLC, a private entity. NGES operated LIPA'selectrical transmission and distribution system under a management servicesagreement.
On October 26, 2012, as Hurricane Sandy approached, the Governor of the State ofNew York declared a "State Disaster Emergency" (hereinafter the Declaration ofEmergency). Two days later, the Mayor of the City of New York issued a "Proclamationof a State of Emergency and [*2]Evacuation Order"(hereinafter the Evacuation Order) with respect to the evacuation of "Zone A," whichincluded the Rockaway Peninsula. The plaintiffs allege that LIPA and NGES (hereinaftertogether the appellants) should have foreseen, among other things, that salt water fromthe storm surge would come into contact with electrical transmission lines, that fireswould result if the electrical transmission lines were live, and that the fires would causeproperty damage. The plaintiffs allege that salt water from the storm surge indeed cameinto contact with live transmission lines, that fires resulted, and that the fires damagedtheir property. The plaintiffs allege that in light of what was foreseeable, the appellantswere negligent in their preparation for and reaction to the hurricane, including, inparticular, their failure to de-energize the Rockaway Peninsula.
The appellants jointly moved pursuant to CPLR 3211 (a) (7) to dismiss the amendedcomplaint insofar as asserted against them. They contended that LIPA is immune fromliability under the doctrine of governmental function immunity because its response tothe hurricane—most specifically its decision not to de-energize the RockawayPeninsula after the Declaration of Emergency and the Evacuation Order wereissued—amounted to the performance of a discretionary governmental action.They further insisted that NGES likewise was entitled to the benefit of that doctrinebecause, under NGES's agreement with LIPA, NGES was providing an essentialgovernmental function on behalf of LIPA. The Supreme Court denied the motion. LIPAand NGES appeal.
In determining a motion to dismiss a complaint for failure to state a cause of action(see CPLR 3211 [a] [7]), the court must read the complaint liberally and assumethat the plaintiffs' allegations are true. If the allegations, as supplemented by anyaffidavits, fit within any cognizable legal theory, the court must deny the motion todismiss (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Matter of Long Is. Power Auth.Hurricane Sandy Litig., 134 AD3d 1119, 1120 [2015]; East Hampton Union Free SchoolDist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16NY3d 775 [2011]; Breytman vOlinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
Governmental entities perform a variety of functions. Some of these functions arepurely proprietary, others are purely governmental, and others have characteristics ofboth. The distinction between proprietary and governmental functions is importantbecause the governmental function immunity doctrine applies, as its name suggests, onlyto the actions of a governmental entity that are properly categorized as governmentalfunctions (see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Granata v City of White Plains,120 AD3d 1187, 1188 [2014]; Kochanski v City of New York, 76 AD3d 1050, 1051[2010]). Governmental entities acting in furtherance of a proprietary function will besubject to liability under ordinary principles of tort law (see Miller v State of NewYork, 62 NY2d 506, 511 [1984]).
"[Q]uintessential governmental functions" include police and fire protection; thesefunctions are "acts . . . 'undertaken for the protection and safety of thepublic pursuant to the general police powers' " (Applewhite v Accuhealth, Inc.,21 NY3d 420, 425 [2013], quoting Sebastian v State of New York, 93 NY2dat 793). By contrast, a "government entity performs a purely proprietary role when its'activities essentially substitute for or supplement traditionally privateenterprises' " (Applewhite v Accuhealth, Inc., 21 NY3d at 425,quoting Sebastian v State of New York, 93 NY2d at 793; see Wittorf v City of NewYork, 23 NY3d 473, 479 [2014]). Proprietary functions include, for example,the maintenance of roads and highways in a reasonably safe condition (see Wittorf vCity of New York, 23 NY3d at 480).
In New York, electric utilities have been "traditionally private enterprises"(Sebastian v State of New York, 93 NY2d at 793 [internal quotation marksomitted]). Moreover, the legislature enacted the Long Island Power Authority Act(Public Authorities Law § 1020 et seq.) for the express purpose of"replacing" the Long Island Lighting Company (hereinafter LILCO), a private utility,with LIPA (Public Authorities Law § 1020-a; see Public AuthoritiesLaw § 1020-g [n]). The legislature cited a "lack of confidence" in LILCO(Public Authorities Law § 1020-a). It also expressed its expectation thatLIPA would do a better job than LILCO of providing electricity: "the replacement ofsuch investor owned utilities by [LIPA] will result in an improved system and reductionof future costs and a safer, more efficient, reliable and economical supply of electricenergy" (Public [*3]Authorities Law§ 1020-a). Thus, the legislature clearly intended that LIPA "substitute for[a] traditionally private enterprise[ ]" in the performance of a proprietary function(Sebastian v State of New York, 93 NY2d at 793 [internal quotation marksomitted]).
We conclude that under the analysis long utilized by the Court of Appeals (seeApplewhite v Accuhealth, Inc., 21 NY3d at 425; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428,446-447 [2011]; Sebastian v State of New York, 93 NY2d at 793; Miller vState of New York, 62 NY2d at 511-512; Riss v City of New York, 22 NY2d579, 581-582 [1968]), the provision of electricity is properly categorized as a proprietaryfunction. The provision of electricity has traditionally been a private enterprise in thisstate, and the legislature clearly created LIPA as a public authority to substitute for aprivate enterprise (see Applewhite v Accuhealth, Inc., 21 NY3d at 425;Sebastian v State of New York, 93 NY2d at 793).
Our dissenting colleague posits that a "governmental entity's preparation for a naturaldisaster or for some other external emergency, and its response during such an event, aregenerally deemed to be governmental functions." The underlying premise of thisassertion is that the governmental entity is acting in a dual role. When the entity is actingin a dual role, its activities may implicate a "continuum of responsibility" ranging fromthe most purely proprietary to the most complex governmental (Miller v State of NewYork, 62 NY2d 506, 511 [1984]; see Marilyn S. v City of New York, 134AD2d 583, 584 [1987], affd for reasons stated below 73 NY2d 910 [1989]). Inthose situations, "[i]t is the specific act or omission out of which the injury is claimed tohave arisen and the capacity in which that act or failure to act occurred which governsliability" (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982];see Marilyn S. v City of New York, 134 AD2d at 584). Our colleague concludesthat the appellants' response to Hurricane Sandy was more akin to the governmentalfunction of policing than it was to the ordinary process of running an electricalutility.
We reject the premise that the appellants were acting in a dual role in operating as anelectrical utility. One example of such a dual role is a governmental entity's ownership ofproperty. When a governmental entity acts as a landlord, it generally has the same tortliability as a private landlord (see Miller v State of New York, 62 NY2d at 511;Granata v City of White Plains, 120 AD3d at 1188-1189). Thus, for example, ithas a duty, like any other landlord, to maintain its property in a reasonably safe condition(see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446-447; Millerv State of New York, 62 NY2d at 511). A governmental property owner may thus beresponsible for providing adequate security in the form of working doorlocks or securitycameras (see Miller v State of New York, 62 NY2d at 513-514; Granata vCity of White Plains, 120 AD3d at 1188-1189).
On the other hand, a governmental property owner's decisions as to the deploymentof police and its response to terrorist threats is governmental, rather than proprietary(see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 447-448; Millerv State of New York, 62 NY2d at 512; Salone v Town of Hempstead, 91 AD3d 746, 747 [2012];Pugliese v City of New York, 115 AD2d 465, 465 [1985]). In Matter ofWorld Trade Ctr. Bombing Litig., for example, the Court of Appeals distinguishedthe security obligations of every landowner from the responsibility of the Port Authorityof New York and New Jersey (hereinafter the Port Authority) as a governmental entity:"unlike the safety precautions required of every reasonable landowner, the PortAuthority's security operations featured policy-based decision-making involving dueconsideration of pertinent factors such as the risk of harm, and the costs and benefits ofpursuing a particular allocation of resources. As a result, the Port Authority placed policeresources in priority areas deemed more susceptible to attack—i.e., the high-riskplaza and concourse rather than the low-risk parking garage" (Matter of World TradeCtr. Bombing Litig., 17 NY3d at 449). Thus, the Port Authority's "security"obligations with respect to the World Trade Center concerned dual roles: proprietaryresponsibilities as the owner of property, and governmental responsibility to the public atlarge in policing functions. In short, the Port Authority's responsibility in preparing forand responding to a terrorist threat is very different from the responsibility of an ordinaryproperty owner to keep property reasonably safe.
By contrast, the functions of electric utilities in the ordinary course of providingelectricity and in responding adequately to a hurricane are both part of the proprietarycore functions [*4]of their business. True, here, theappellants' actions, because of the size of LIPA's customer base, affected many peopleand many businesses. True, too, LIPA's response to the hurricane may have involvedcomplex considerations. But every private electric utility in the region faced the samehurricane. For example, Consolidated Edison, Inc. (hereinafter Con Ed), which is themain provider of electricity in the City of New York, preemptively de-energized lowerManhattan and certain parts of Brooklyn, including neighborhoods across the water andimmediately north of the Rockaway Peninsula, which were areas threatened withflooding, as a means of reducing likely damage to Con Ed's and its customers'equipment. It is not simply the size of the task that determines whether an action isgovernmental or proprietary. The determination must also consider the nature of theresponsibility. Simply put, the appellants have not established that their decision not tode-energize the Rockaway Peninsula involved governmental function powers.Accordingly, we disagree that the magnitude of Hurricane Sandy itself shielded theappellants from having to answer in tort for deficiencies in their preparation andresponse.
LIPA relies on legislation declaring that it exercises "essential governmental andpublic powers" (Public Authorities Law § 1020-c) and "an essentialgovernmental function" (Public Authorities Law § 1020-p [1]). Thatdesignation, however, is present in many laws creating public authorities, many of whichmay be regarded as engaging in proprietary activities in furtherance of their core purpose(see e.g. Public Authorities Law §§ 902 [7] [Long IslandMarket Authority]; 1264 [2] [Metropolitan Transportation Authority]; 1427 [2] [WhitePlains Parking Authority]; 1942 [5] [Upper Mohawk Valley Memorial AuditoriumAuthority]; 2052-c [5] [Oneida County Sports Facility Authority]; 2502 [New York CitySports Authority], 2751 [6] [Monroe County Airport Authority]; 3301 [5] [WestchesterCounty Health Care Corporation]; 3551 [8] [Roswell Park Cancer InstituteCorporation]). The legislative declaration that a governmental entity is engaging in "anessential government function" is relevant in other legal contexts (see e.g. Matter ofLong Is. Power Auth. Hurricane Sandy Litig., 134 AD3d at 1121), but it is notdeterminative with respect to the applicability of the governmental immunity doctrine toshield the entity from tort liability.
Finally, since NGES's claim of governmental immunity presupposes that LIPA isentitled to governmental immunity, our conclusion that LIPA is not entitled to immunitynecessarily rejects NGES's claim of immunity as well.
The appellants' remaining contentions are without merit or need not be addressed inlight of our determination.
Accordingly, the Supreme Court properly denied the joint motion of LIPA andNGES pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar asasserted against them. Balkin, J.P., Austin and Hinds-Radix, JJ., concur.
Miller, J., dissents, and votes to reverse the order appealed from, on the law, andgrant the joint motion of the defendants Long Island Power Authority (LIPA) andNational Grid Electric Services, LLC, incorrectly sued herein as Keyspan ElectricServices, LLC, pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofaras asserted against them, with the following memorandum: When properly invoked, thedefense of governmental immunity shields a public entity from liability for itsnegligence. Although the application of this doctrine may yield harsh results, the courtsof this state are not vested with the discretionary authority to pick and choose when toapply it. Rather, we are bound to apply governmental immunity in accordance with thelegal principles set forth by the Court of Appeals. In this case, the Supreme Court appliedthe law of governmental immunity in a manner that conflicts with those precedents.Accordingly, I vote to reverse the order of the Supreme Court, and I must respectfullydissent from my colleagues' determination.
The plaintiffs were owners of real and personal property located on the RockawayPeninsula in Queens. The plaintiffs commenced this action against, among others, theLong Island [*5]Power Authority (LIPA) and NationalGrid Electric Services, LLC, incorrectly sued herein as Keyspan Electric Services, LLC(hereinafter NGES) to recover damages for, inter alia, negligence.
The amended complaint alleged that LIPA was "a non-profit municipal electricprovider" that owned and operated an electric transmission and distribution systemserving customers on the Rockaway Peninsula, including the plaintiffs. The amendedcomplaint alleged that NGES was a private entity that had contracted with LIPA tooperate LIPA's electrical system.
The amended complaint alleged that in October 2012, a storm system identified asHurricane Sandy began to move towards the New York City metropolitan area. Thestorm system became a Category One hurricane on October 24, 2012, and strengthenedto a Category Two hurricane at its peak intensity. As the storm system made its way upthe Atlantic coastline, it grew in size to nearly 2,000 miles across, and the NationalWeather Service issued high wind and flood watches for New Jersey, the City of NewYork, and Long Island.
The amended complaint alleged that on October 26, 2012, Governor Andrew Cuomodeclared a state of emergency for all of New York's 62 counties in preparation for theimpact of the hurricane. On October 28, 2012, the City of New York issued "aMandatory Evacuation Order for the Rockaway Peninsula." On October 29, 2012,Hurricane Sandy "intensified," and that evening and "through the night," the "stormsurge created flooding [that] devastat[ed] many areas within the City of New York,. . . including the Rockaway Peninsula." Some of the flood waters came intocontact with electrical transmission lines causing "electrical arcing." This electricalarcing allegedly generated heat that resulted in fires that ultimately damaged real andpersonal property owned by the plaintiffs.
The amended complaint alleged that LIPA and NGES "had a duty to maintain theelectric transmission and distribution system . . . in a reasonably safe andsuitable condition." The amended complaint also alleged that LIPA and NGES had "theduty . . . to . . . ensure the safety . . . of theproperty of the general public and . . . the property of those who weresupplied electricity by . . . LIPA." The amended complaint alleged thatLIPA and NGES "were negligent in their duty to maintain their electrical lines in areasonably safe condition." More particularly, the plaintiffs asserted that LIPA andNGES were negligent in failing to de-energize the Rockaway Peninsula after theMandatory Evacuation Order was issued since "it was foreseeable that failing tode-energize would cause fire and electrical hazards posed by wiring and circuits cominginto contact with flood water." The plaintiffs also asserted that LIPA and NGES werenegligent in failing to "de-energize or repair arcing and downed electrical lines" within areasonable time after it received notice that such conditions had arisen during the courseof the storm. The plaintiffs contended that, in light of the alleged negligence, they wereentitled to recover from LIPA and NGES the value of property that had been damagedduring the course of the storm.
LIPA and NGES (hereinafter together the moving defendants) jointly movedpursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as assertedagainst them. They argued that they were entitled to governmental immunity since theywere performing a governmental function in determining how to prepare for, andrespond to, the emergency situation that was created by the unprecedented storm.
The plaintiffs opposed the motion, arguing, inter alia, that the defense ofgovernmental immunity was not applicable in this case. In this regard, the plaintiffscontended that the operation of an electrical utility was "a historically proprietaryfunction," and that the moving defendants "at all times . . . acted as a utilityand that their functioning was proprietary rather than governmental." The plaintiffs alsocontended that, even if LIPA was entitled to governmental immunity, NGES could notassert such a defense since it was a private, for-profit corporation, not a governmentalentity.
In the order appealed from, the Supreme Court denied the moving defendants'motion. The court stated: "[T]he evidence before this Court shows that, traditionally,electricity in [*6]New York has been provided by privateentities, with public entities like LIPA being the exception rather than the rule." Thecourt determined that "providing electricity to consumers [was] a proprietary act becauseelectricity has traditionally been supplied by the private sector." Accordingly, the courtconcluded that since LIPA and NGES were engaged in the proprietary act of transmittingelectricity, they were not entitled to assert the defense of governmental immunity. Thecourt also concluded that NGES was unable to assert governmental immunity for theadditional reason that "private contractors that perform work for government entities areliable for their own negligence" and "may not use governmental immunity as a defense toa negligence claim."
The moving defendants appeal from the Supreme Court's order. In my view, thecourt erred as a matter of law in the way it applied the principles of governmentalimmunity to the facts of this case, and the order should be reversed.
The Court of Appeals has stated that "[a]lthough the State long ago waived sovereignimmunity on behalf of itself and its municipal subdivisions, the common-law doctrine ofgovernmental immunity continues to shield public entities from liability for discretionaryactions taken during the performance of governmental functions" (Valdez v City of New York, 18NY3d 69, 75-76 [2011]; see Haddock v City of New York, 75 NY2d 478,484 [1990]). "This limitation on liability reflects separation of powers principles and isintended to ensure that public servants are free to exercise their decision-makingauthority without interference from the courts" (Valdez v City of New York, 18NY3d at 76). The doctrine of governmental immunity thus "reflects a value judgmentthat—despite injury to a member of the public—the broader interest inhaving government officers and employees free to exercise judgment and discretion intheir official functions, unhampered by fear of second-guessing and retaliatory lawsuits,outweighs the benefits to be had from imposing liability for that injury" (Haddock vCity of New York, 75 NY2d at 484; see Mon v City of New York, 78 NY2d309, 313 [1991]).
The Court of Appeals has set forth the framework to be employed when applying thedoctrine of governmental immunity to a negligence action against a governmental entity(see Wittorf v City of NewYork, 23 NY3d 473, 478-479 [2014]; Applewhite v Accuhealth, Inc., 21 NY3d 420, 425-426[2013]). "[T]he first issue for a court to decide is whether the [public] entity was engagedin a proprietary function or acted in a governmental capacity at the time the claim arose"(Applewhite v Accuhealth, Inc., 21 NY3d at 425; see Wittorf v City of NewYork, 23 NY3d at 478-479). If the negligence claim arises out of the performance ofa governmental function, the public entity will be immune from liability unless theinjured person establishes a special relationship with the entity (see Miller v State ofNew York, 62 NY2d 506, 510 [1984]). On the other hand, "[i]f the [public entity's]actions fall in the proprietary realm, it is subject to suit under the ordinary rules ofnegligence applicable to nongovernmental parties" (Applewhite v Accuhealth,Inc., 21 NY3d at 425; see Wittorf v City of New York, 23 NY3d at478-479).
A governmental entity performs a purely proprietary role when its "activitiesessentially substitute for or supplement traditionally private enterprises" (Sebastian vState of New York, 93 NY2d 790, 793 [1999] [internal quotation marks omitted];see Applewhite v Accuhealth, Inc., 21 NY3d at 425). For example, "[o]wnershipand care relating to buildings with tenants has traditionally been carried on throughprivate enterprise, specifically by landlords and thus constitutes a proprietary functionwhen performed by the State" (Miller v State of New York, 62 NY2d at 513).The Court of Appeals has also recognized that "a municipality has a proprietary duty tokeep its roads and highways in a reasonably safe condition" (Wittorf v City of NewYork, 23 NY3d at 480).
In contrast, a governmental entity will be deemed to have been engaged in agovernmental function when its acts are "undertaken for the protection and safety of thepublic" (Sebastian v State of New York, 93 NY2d at 793 [internal quotationmarks omitted]; see Wittorf v City of New York, 23 NY3d at 479;Applewhite v Accuhealth, Inc., 21 NY3d at 425). "Police and fire protection areexamples of long-recognized, quintessential governmental functions" (Applewhite vAccuhealth, Inc., 21 NY3d at 425). As such, the Court of Appeals has held that "amunicipal emergency response system . . . should be viewed as 'a classicgovernmental, rather than proprietary, function' " (id. at 430, quotingValdez v City of New York, 18 NY3d at 75).
[*7] In considering whether the functions of a public entityare proprietary or governmental in nature, the Court of Appeals has eschewed theapplication of a rigid dichotomy in favor of "a continuum of responsibility to individualsand society deriving from its governmental and proprietary functions" (Miller v Stateof New York, 62 NY2d at 511-512). This "metaphorical continuum begins at oneend with the purest proprietary matters and 'extends gradually out to more complexmeasures of safety and security for a greater area and populace, whereupon the actionsincreasingly, and at a certain point only, involve governmental functions' "(Sebastian v State of New York, 93 NY2d at 793, quoting Miller v State ofNew York, 62 NY2d at 512).
In this case, there is little difficulty in reaching the conclusion that the provision ofelectricity has traditionally been a proprietary enterprise undertaken by private entities(see generally Prosser & Keeton, Torts § 131 at 1053 [5th ed1984]). The case law of this state is replete with instances where a private electriccompany has been subject to liability under ordinary rules of negligence (see e.g.Miner v Long Is. Light. Co., 40 NY2d 372 [1976]; Braun v Buffalo Gen. Elec.Co., 200 NY 484 [1911]; Ward v Atlantic & Pac. Tel. Co., 71 NY 81[1877]). As the plaintiffs correctly contend, New York courts have long recognized that"an electric power company has the duty to use that degree of care which is reasonablynecessary to prevent persons from coming into contact with its transmission lines and toprevent the dangerous escape of electricity therefrom" (PJI 2:195; see Miner v LongIs. Light. Co., 40 NY2d 372 [1976]; Braun v Buffalo Gen. Elec. Co., 200NY 484 [1911]; Ward v Atlantic & Pac. Tel. Co., 71 NY 81 [1877]).
However, the fact that the moving defendants were generally engaged in atraditionally proprietary endeavor does not conclude the analysis. The Court of Appealshas recognized that the varying nature of activities engaged in by public entities "maysometimes partake of both proprietary and governmental aspects" (Sebastian v Stateof New York, 93 NY2d at 793), and that such entities may sometimes perform a"dual role" that involves the exercise of both proprietary and governmental functions(Miller v State of New York, 62 NY2d at 511).
Accordingly, the Court of Appeals has repeatedly stressed that "in light of the factthat the varied functions of a governmental entity can be interspersed with bothgovernmental and proprietary elements, the determination of the primary capacity underwhich a governmental agency was acting turns solely on the acts or omissions claimed tohave caused the injury" (Matterof World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011]; see Wittorfv City of New York, 23 NY3d at 479; Sebastian v State of New York, 93NY2d at 794; Miller v State of New York, 62 NY2d at 511; Weiner vMetropolitan Transp. Auth., 55 NY2d 175, 182 [1982]). In other words, "[i]t is thespecific act or omission out of which the injury is claimed to have arisen and the capacityin which that act or failure to act occurred which governs liability, not whether theagency involved is engaged generally in proprietary activity or is in control of thelocation in which the injury occurred" (Weiner v Metropolitan Transp. Auth., 55NY2d at 182; see Wittorf v City of New York, 23 NY3d at 479; Matter ofWorld Trade Ctr. Bombing Litig., 17 NY3d at 447; Sebastian v State of NewYork, 93 NY2d at 794; Miller v State of New York, 62 NY2d at 511).
Here, although the moving defendants were "engaged generally in proprietaryactivity" as providers of electrical power (Weiner v Metropolitan Transp. Auth.,55 NY2d at 182), the gravamen of the amended complaint does not relate to thosegeneral operations. The amended complaint does not allege that the electric transmissionand distribution system was in disrepair prior to the onset of Hurricane Sandy, or that itwas not "strong enough to withstand such violent storms as may be reasonably expected"(Ward v Atlantic & Pac. Tel. Co., 71 NY at 85). Nor does the amendedcomplaint allege that the transmission lines were negligently located in dangerousproximity to water or to human activity, or that they were negligently constructed suchthat they were unreasonably susceptible to water damage (cf. Miner v Long Is. Light.Co., 40 NY2d 372 [1976]). The amended complaint does not take issue with thecondition of the electric transmission and distribution system prior to Hurricane Sandy orotherwise allege that, in the absence of the storm, the system was operated in a mannerconstituting negligence (cf. Braun v Buffalo Gen. Elec. Co., 200 NY 484 [1911];Flex-O-Vit USA v Niagara Mohawk Power Corp., 292 AD2d 764 [2002]).
As the amended complaint reflects, the plaintiffs do not take the position that the[*8]electric transmission and distribution system wasinherently dangerous. Instead, the plaintiffs claim that the system was rendereddangerous by the presence of an external threat. Accordingly, "the specific act oromission out of which the injury is claimed to have arisen" is not related to the normalday-to-day operation of the system, but rather, the failure to deviate from such normaloperations given the extraordinary circumstances occasioned by Hurricane Sandy(Weiner v Metropolitan Transp. Auth., 55 NY2d at 182).
A governmental entity's preparation for a natural disaster or for some other externalemergency, and its response during such an event, are generally deemed to begovernmental functions (see Applewhite v Accuhealth, Inc., 21 NY3d at428-429; Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 447; Laratro v City of New York, 8NY3d 79, 80 [2006]; Cockburn v City of New York, 129 AD3d 895, 897 [2015];Estate of Gail Radvin v City ofNew York, 119 AD3d 730, 733 [2014]; Freeman v City of New York, 111 AD3d 780, 782 [2013];Stathakos v Metropolitan Tr.Auth. Long Is. R.R., 109 AD3d 979, 980-981 [2013]; Kadymir v New York City Tr.Auth., 55 AD3d 549, 552 [2008]). Such functions are unquestionably"undertaken for the protection and safety of the public" (Balsam v Delma Eng'gCorp., 90 NY2d 966, 968 [1997]; see Applewhite v Accuhealth, Inc., 21NY3d at 430), and implicate discretionary policy decisions regarding the managementand prioritization of the multifaceted risks posed by the external hazard, along with theutilization of the finite resources available to address such threats to public safety (seeMatter of World Trade Ctr. Bombing Litig., 17 NY3d at 448-449; Stathakos vMetropolitan Tr. Auth. Long Is. R.R., 109 AD3d at 980-981; Kadymir v NewYork City Tr. Auth., 55 AD3d at 552; see also Balsam v Delma Eng'g Corp.,90 NY2d at 968; Clinger v New York City Tr. Auth., 85 NY2d 957, 959 [1995];Bonner v City of New York, 73 NY2d 930, 932 [1989]; Weiner vMetropolitan Transp. Auth., 55 NY2d at 182).
Moreover, as the Court of Appeals has repeatedly recognized, " 'complexmeasures of safety and security for a greater area and populace' is more indicative of theperformance of a governmental function" (Matter of World Trade Ctr. BombingLitig., 17 NY3d at 450, quoting Miller v State of New York, 62 NY2d at512). Here, given the allegations in the amended complaint, it is evident that the specificacts or omissions comprising the plaintiffs' negligence claim necessarily affected a largegeographical area as well as the health and safety of a correspondingly large population.Accordingly, "the breadth and nature" of the allegedly negligent conduct is consistentwith traditionally governmental functions (Matter of World Trade Ctr. BombingLitig., 17 NY3d at 450).
Furthermore, a finding that the negligence alleged here relates to a governmentalfunction is consistent with the policy goals underlying the doctrine of governmentalimmunity. The doctrine seeks to foster the ability of entities performing governmentalfunctions to make "decisions that involve the balancing of burdens and risks, competinginterests, and allocation of resources" (id. at 454). These discretionary decisions,which are often made, as here, while the public at large is facing an immediate threatfrom an emergency situation, "cannot be dictated by the edict of a court or theretrospective conclusions of a jury" (id. at 452).
The plaintiffs nevertheless contend that even if LIPA was entitled to governmentalimmunity, NGES could not assert such a defense since it was a private, for-profitcorporation and not a governmental entity. This contention is without merit. Thenegligent acts and omissions attributed to NGES in the amended complaint relate to itsperformance of an essential governmental function for LIPA in responding to the crisiscreated by Hurricane Sandy. Accordingly, under the circumstances, NGES is notprecluded from asserting the defense of governmental immunity by virtue of its status asa private contractor (see Altro v Conrail, 130 AD2d 612, 613 [1987]; see alsoFilarsky v Delia, 566 US &mdash, 132 S Ct 1657 [2012]). The plaintiffs' remainingcontentions, raised as alternative grounds for affirmance (see Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]), are also withoutmerit.
In sum, the gravamen of the plaintiffs' case is that the moving defendants werenegligent in preparing for, and responding to, a natural disaster. As such, theinjury-causing acts or omissions alleged in the amended complaint pertain togovernmental functions. The Supreme Court's determination to the contrary was error asa matter of law. Furthermore, the plaintiffs do not [*9]allege the existence of a special duty that could render themoving defendants liable for the performance of this governmental function. Construingthe amended complaint liberally, accepting the facts alleged in it as true, and affordingthe plaintiffs the benefit of every possible favorable inference, as we are required to do,the plaintiffs' allegations fail to state a cause of action against the moving defendants.Accordingly, the Supreme Court should have granted the moving defendants' motionpursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as assertedagainst them. [Prior Case History: 45 Misc 3d 257.]