Connolly v. Long Island Power Authority

Baumann v Long Is. Power Auth. (2016 NY Slip Op 05483) Baumann v Long Is. Power Auth. 2016 NY Slip Op 05483 Decided on July 13, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on July 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. LEONARD B. AUSTIN ROBERT J. MILLER SYLVIA O. HINDS-RADIX, JJ. 2014-09084 (Index No. 13286/13 ) [*1]William Baumann, et al., respondents, v Long Island Power Authority, et al., appellants, et al., defendant. Lazer, Aptheker, Rosella & Yedid, P.C., Melville, NY (David Lazer and Zachary Murdock of counsel), for appellants Long Island Power Authority and Long Island Lighting Company, and Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (William J. Croutier, Jr., Erin N. Mackin, and Anton Piotroski of counsel), for appellant National Grid Electric Services, LLC (one brief filed). Sullivan Papain Block McGrath & Cannavo P.C., New York, NY (Brian J. Shoot and Eric K. Schwarz of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for negligence, the defendants Long Island Power Authority and Long Island Lighting Company appeal, and the defendant National Grid Electric Services, LLC, separately appeals, from an order of the Supreme Court, Queens County (Siegal, J.), entered July 14, 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 commenced this action against, among others, the Long Island Power Authority (hereinafter LIPA), a public authority (see Public Authorities Law § 1020 et seq.), the Long Island Lighting Company (hereinafter LILCO), previously a private electric company and now allegedly a wholly owned subsidiary of LIPA, and National Grid Electric Services, LLC (hereinafter NGES and collectively with LIPA and LILCO, the defendants), LIPA's private contractor responsible for operating LIPA's electrical transmission and distribution system. The plaintiffs seek to recover damages for the destruction of their real and personal property located on the Rockaway Peninsula in Queens, which they allege occurred because the defendants negligently failed to preemptively de-energize the Rockaway Peninsula prior to or during Hurricane Sandy on October 29, 2012. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them on the ground that LIPA was immune from liability based on the doctrine of governmental function immunity, and that LILCO and NGES were entitled to the same governmental immunity defense as LIPA. The Supreme Court denied the motion. The defendants appeal. The denial of the defendants' motion was proper for the reasons stated in Heeran v Long Is. Power Auth. (LIPA) (___ AD3d ___ [decided herewith]). BALKIN, J.P., AUSTIN and HINDS-RADIX, JJ., concur. MILLER, J., dissents, and votes to reverse the order appealed from and grant the joint motion of the defendants Long Island Power Authority, Long Island Lighting Company, and National Grid Electric Services, LLC, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them for the reasons stated in his dissenting memorandum in Heeran v Long Is. Power Auth. (LIPA) (__ AD3d __ [decided herewith]). ENTER: Aprilanne Agostino Clerk of the Court