Blair v. NYNEX Corp.

246 A.D.2d 336, 667 N.Y.S.2d 365, 1998 N.Y. App. Div. LEXIS 40

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1998
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 15, 1996, which, inter alia, granted defendant’s cross motion to dismiss the action without prejudice to recommencement after plaintiff exhausts his administrative remedies, unanimously affirmed, without costs.

Plaintiff purports to represent a class of those persons who have been charged five cents by a pay telephone for additional time on a call, but have paid a greater amount because they did not have the correct change, and because the pay telephones are mechanically unable to provide refunds or to credit the caller with additional time. We agree with the motion court that the primary jurisdiction doctrine warrants deferral to the Public Service Commission, and that the action should be dismissed without prejudice to any action or proceeding plaintiff might institute after exhaustion of administrative remedies (see, Goodman & Co. v New York Tel. Co., 285 App Div 404, 410, affd 309 NY 258, 266-267; International Condominium Corp. v New York Tel. Co., 46 AD2d 719). The record does not indicate that plaintiff has, at this time, exhausted his administrative remedies (see, 16 NYCRR 12.5,12.14). Concur— Rosenberger, J. P., Wallach, Rubin, Williams and Tom, JJ.