Lamparter v. Long Island Lighting Co.

90 A.D.2d 496, 454 N.Y.S.2d 751, 1982 N.Y. App. Div. LEXIS 18522

Opinion

In an action, inter alia, for a declaratory judgment and permanent injunction, plaintiff appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated November 24,1981, which denied his motion for a preliminary injunction and granted defendant’s cross motion to dismiss the complaint for lack of subject matter jurisdiction. Order affirmed, without costs or disbursements. Special Term correctly determined that the Public Service Commission has primary jurisdiction in this matter. Plaintiff has clearly raised issues that “should be ‘considered and passed upon by the trained body established for that very purpose and especially equipped to examine into the intricate facts commonly involved in public utility problems’ (Matter of Carroll Realty Corp. v New York Edison Co., 141 Misc 266, 272) before resort to the courts should be allowed” (see Guglielmo v Long Is. Light. Co., 83 AD2d 481, 488-489). In addition to raising questions of fact, plaintiff is contesting both the reasonableness and application of defendant’s backbilling and service discontinuance rules. Under the doctrine of primary jurisdiction, it is clear that where questions of fact exist, the controversy should be referred to the Public Service Commission. This is so even if questions of law are also involved. Accordingly, the cross motion to dismiss the complaint was properly granted. Mollen, P. J., Laser, Mangano and Niehoff, JJ., concur.