Stack v. Branicky

119 A.D.2d 998, 500 N.Y.S.2d 898, 1986 N.Y. App. Div. LEXIS 55932

Opinion

— Order unanimously reversed, on the law, without costs, and appellant’s motion granted. Memorandum: Special Term erred in denying the motion of defendant New York State Electric and Gas Corp. (NYSEG) seeking summary judgment dismissing the complaint. "The rule is well established that a public utility may not be held liable for negligent failure to supply service absent a contractual relationship between plaintiff and the utility (see Moch Co. v Rensselaer Water Co., 247 NY 160; Strauss v Belle Realty Co., 98 AD2d 424; Beck v FMC Corp., 53 AD2d 118, affd 42 NY2d 1027; cf. Koch v Consolidated Edison Co., 62 NY2d 548)” (Grosshans v Rochester Gas & Elec. Corp. 103 AD2d 1038).

More recently, the Court of Appeals in Strauss v Belle Realty Co. (65 NY2d 399, affg 98 AD2d 424, supra), addressing the responsibility of public utilities to provide service, reaffirmed the proposition that a defendant’s negligence is actionable only when it breaches a duty owed to plaintiff. "[I]n determining the liability of utilities for consequential damages for failure to provide service — a liability which could obviously be 'enormous,’ and has been described as 'sui generis, ’ rather than strictly governed by tort or contract law principles (see, Prosser and Keeton, Torts § 92, at 663 [5th ed]) — courts have declined to extend the duty of care to noncustomers” (Strauss v Belle Realty Co., supra, p 403). (Appeal from order of Supreme Court, Erie County, Ricotta, J. — summary judgment.) Present — Callahan, J. P., Doerr, Denman, Green and O’Donnell, JJ.