Opinion
December 10, 1970
Appeal from the Onondaga Special Term.
Present — Goldman, P.J., Marsh, Gabrielli and Moule, JJ. [ 63 Misc.2d 581.]
Order reversed and complaint dismissed, without costs. Memorandum: Plaintiff, as the tenant of an apartment in the City of Syracuse, has paid a monthly rental which included heat, electricity and hot water. Without notice to plaintiff, defendant discontinued electrical service to plaintiff's apartment because of the nonpayment of an indebtedness due to defendant for service supplied to her landlord on properties owned by the landlord. Concededly, plaintiff had no contract with defendant and service was furnished plaintiff under the contract between her landlord and defendant. Subdivision 1 of section 15 Transp. Corp. of the Transportation Corporations Law provides: "If any person supplied with gas or electric light by any such corporation shall neglect or refuse to pay the rent or remuneration due for the same * * * as required by his contract with the corporation * * * such corporation may discontinue the supply of gas or electric light to the premises of such person * * * But the supply of gas or electric light shall not be discontinued for non-payment of bills rendered for service until and after a five-day written notice has been served upon such person". As pointed out in Clark v. Utica Gas Elec. Co. ( 224 App. Div. 448, 449) where a property owner fails to pay an amount due for electric service, the utility has the right to discontinue service to him and "there is nothing in the statute limiting this right to any particular building or premises". (See, also, Dworman v. Consolidated Edison Co. of N Y, 26 A.D.2d 535.) The provisions of the statute would appear to make it clear that the requirements as to notice of discontinuance of service are applicable only to persons having contracts for service with the corporation. While subdivision 7 of section 65 Pub. Serv. of the Public Service Law requires posting in a multiple dwelling of written notice of intention to discontinue service therein for nonpayment by the landlord of charges for electrical service, the statute is applicable only to cities having a population of one million or more, which does not include the City of Syracuse, and legislative efforts to extend the benefits of the statute to other areas of the State have not been successful. The service contract entered into between plaintiff's landlord and defendant contained no provision for a prior notice of discontinuance of service to a tenant and thus no contractual right to such notice was created for the plaintiff's benefit. All concur, except Gabrielli, J., who dissents and votes to affirm the order, in the following memorandum: I dissent and vote to affirm. Plaintiff is a tenant in a two-family apartment house. The rent paid by plaintiff includes the cost for the electrical service supplied to plaintiff by defendant. It appears that plaintiff has paid her regular monthly rental to the landlord who, in turn, has been current in the payment for electrical service for these premises. However, because of the nonpayment for electrical service on other properties owned by the landlord, defendant has turned off the service to the premises occupied by plaintiff, without prior notice to her. Subdivision 1 of section 15 Transp. Corp. of the Transportation Corporations Law provides that "If any person supplied with" electrical service neglects or refuses to pay therefor, the supplier may discontinue the electrical service provided "a five-day written notice has been served upon such person * * * addressed to such person at premises where service is rendered" (emphasis supplied). Under the circumstances presented, plaintiff is a "person" contemplated by the statute and is entitled to service of such a notice in order to enable her to pay for such service in the event of any delinquency (see Brewer v. Brooklyn Union Gas Co., 33 Misc.2d 1015).