Heeran v. Long Is. Power Auth. (LIPA)

141 A.D.3d 561, 36 N.Y.S.3d 165
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 13, 2016
Docket2014-07622
StatusPublished
Cited by12 cases

This text of 141 A.D.3d 561 (Heeran v. Long Is. Power Auth. (LIPA)) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heeran v. Long Is. Power Auth. (LIPA), 141 A.D.3d 561, 36 N.Y.S.3d 165 (N.Y. Ct. App. 2016).

Opinions

In an action, inter alia, to recover damages for negligence, the defendant Long Island Power 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 amended complaint 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, seek to hold the defendants responsible in negligence. According to the amended complaint, the plaintiffs were owners of real and personal property on the Rockaway Peninsula in Queens. They also were customers of the defend[562]*562ants Long Island Power Authority (LIPA), a public authority {see Public Authorities Law § 1020 et seq.), and National Grid Electric Services, LLC (hereinafter NGES), incorrectly sued herein as Keyspan Electric Services, LLC, a private entity. NGES operated LIPA’s electrical transmission and distribution system under a management services agreement.

On October 26, 2012, as Hurricane Sandy approached, the Governor of the State of New York declared a “State Disaster Emergency” (hereinafter the Declaration of Emergency). Two days later, the Mayor of the City of New York issued a “Proclamation of a State of Emergency and Evacuation Order” (hereinafter the Evacuation Order) with respect to the evacuation of “Zone A,” which included the Rockaway Peninsula. The plaintiffs allege that LIPA and NGES (hereinafter together the appellants) should have foreseen, among other things, that salt water from the storm surge would come into contact with electrical transmission lines, that fires would result if the electrical transmission lines were live, and that the fires would cause property damage. The plaintiffs allege that salt water from the storm surge indeed came into contact with live transmission lines, that fires resulted, and that the fires damaged their property. The plaintiffs allege that in light of what was foreseeable, the appellants were negligent in their preparation for and reaction to the hurricane, including, in particular, their failure to de-energize the Rockaway Peninsula.

The appellants jointly moved pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against them. They contended that LIPA is immune from liability under the doctrine of governmental function immunity because its response to the hurricane — most specifically its decision not to de-energize the Rockaway Peninsula after the Declaration of Emergency and the Evacuation Order were issued — amounted to the performance of a discretionary governmental action. They further insisted that NGES likewise was entitled to the benefit of that doctrine because, under NGES’s agreement with LIPA, NGES was providing an essential governmental function on behalf of LIPA. The Supreme Court denied the motion. LIPA and 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 assume that the plaintiffs’ allegations are true. If the allegations, as supplemented by any affidavits, fit within any cognizable legal theory, the court must deny the motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Matter of Long Is. Power Auth. Hurricane Sandy [563]*563Litig., 134 AD3d 1119, 1120 [2015]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

Governmental entities perform a variety of functions. Some of these functions are purely proprietary, others are purely governmental, and others have characteristics of both. The distinction between proprietary and governmental functions is important because the governmental function immunity doctrine applies, as its name suggests, only to the actions of a governmental entity that are properly categorized as governmental functions (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 be subject to liability under ordinary principles of tort law (see Miller v State of New York, 62 NY2d 506, 511 [1984]).

“[(Quintessential governmental functions” include police and fire protection; these functions are “acts . . . ‘undertaken for the protection and safety of the public pursuant to the general police powers’” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013], quoting Sebastian v State of New York, 93 NY2d at 793). By contrast, a “government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’ ” (Applewhite v Accuhealth, Inc., 21 NY3d at 425, quoting Sebastian v State of New York, 93 NY2d at 793; see Wittorf v City of New York, 23 NY3d 473, 479 [2014]). Proprietary functions include, for example, the maintenance of roads and highways in a reasonably safe condition (see Wittorf v City 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 marks omitted]). 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 Authorities Law § 1020-g [n]). The legislature cited a “lack of confidence” in LILCO (Public Authorities Law § 1020-a). It also expressed its expectation that LIPA would do a better job than LILCO of providing electricity: “the replacement of such investor owned utilities by [LIPA] will result in an improved system and reduction of [564]*564future costs and a safer, more efficient, reliable and economical supply of electric energy” (Public 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 marks omitted]).

We conclude that under the analysis long utilized by the Court of Appeals (see Applewhite 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 v State of New York, 62 NY2d at 511-512; Riss v City of New York, 22 NY2d 579, 581-582 [1968]), the provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this state, and the legislature clearly created LIPA as a public authority to substitute for a private enterprise (see Applewhite v Accuhealth, Inc., 21 NY3d at 425; Sebastian v State of New York, 93 NY2d at 793).

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Bluebook (online)
141 A.D.3d 561, 36 N.Y.S.3d 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heeran-v-long-is-power-auth-lipa-nyappdiv-2016.