Consolidated Edison Co. of New York, Inc. v. Gallagher

244 A.D.2d 447, 664 N.Y.S.2d 125, 1997 N.Y. App. Div. LEXIS 11646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of an agreement to pay for utilities provided, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered January 12, 1996, as, upon reargument, adhered to so much of a prior determination entered September 8, 1995, as denied his motion for a preliminary injunction to prevent the plaintiff from terminating gas and electric service to his residence.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendant’s motion for a preliminary injunction since he failed to demonstrate a likelihood of ultimate success on the merits, irreparable harm in the absence of injunctive relief, and a balancing of the equities in his favor (see, Aetna Ins. Co. v Capasso, 75 NY2d 860; Doe v Axelrod, 73 NY2d 748). The steps taken by the plaintiff to terminate utilities service to the defendant were authorized by and in accordance with the requirements of Public Service Law § 32 (2) (a) and 16 NYCRR 11.4 (a) (1). Although the unpaid bills upon which termination was premised were more than 12 months old, they were the subject of continuing billing disputes between the parties during the 12-month period preceding the termination process. Moreover, prior orders obtained by the defendant which temporarily precluded termination constituted excusable delays for the plaintiffs failure to terminate service at an earlier time. O’Brien, J. P., Thompson, Sullivan and McGinity, JJ., concur.