Devers v. L.I. Light. Co.

Full title: PATRICK DEVERS, Respondent, v. LONG ISLAND LIGHTING COMPANY, Appellant

Court: Supreme Court, Appellate Term, Second Department

Date published: Jul 19, 1974

79 Misc. 2d 165 (N.Y. App. Term 1974)

359 N.Y.S.2d 940

Opinion

July 19, 1974

Appeal from the District Court of Suffolk County, Third District, Small Claims Part, LAWRENCE NEWMARK, J.

Edward M. Barrett ( Joseph D. Ahearn of counsel), for appellant.

Patrick Devers, respondent pro se.

MEMORANDUM.

Judgment unanimously reversed, without costs, and complaint dismissed.

Since plaintiff failed to prove that defendant was negligent in arriving at an intentional determination to reduce voltage in plaintiff's area, he failed to establish defendant's liability in either contract or tort. The Public Service Commission, in defendant's rate schedule, has approved a limited exemption from liability for ordinary negligence, in the valid exercise of its powers, and since it has not attempted to absolve defendant from gross negligence, such rule is lawful, and not violative of public policy ( Newman v. Consolidated Edison Co., 79 Misc.2d 153 [App. Term, 2d Dept.]; "Wazalen" v. Consolidated Edison Co., N.Y.L.J., June 13, 1973, p. 20, col. 3, App. Term, 2d Dept., affd. 43 A.D.2d 985).

HOGAN, P.J., and GAGLIARDI, J., concur;

PITTONI, J., concurs, in the following memorandum:

I concur with the majority in voting for reversal on the grounds that they have stated, but I add that even though defendant company reduced its power between 3% and 5%, the evidence failed to show that such reduction was a proximate cause of the damages claimed by plaintiff.