Opinion
April 17, 1979
Appeal from the Civil Court of the City of New York, Queens County, Small Claims Part, STEPHEN BURGIO, J., RALPH SHERMAN, J.
Ernest J. Williams and Joseph J. Klem for appellant.
Rosengarten Weinreich (Howard B. Weinreich of counsel), for New York State Food Merchants Association, Inc., amicus curiae.
MEMORANDUM.
Judgments in favor of plaintiffs against Consolidated Edison reversed without costs and complaints dismissed.
This consolidated appeal involves several actions to recover damages for food spoilage resulting from the New York City blackout of July, 1977. An issue is raised herein concerning the validity of Consolidated Edison's tariff which gives the utility a limited exemption from liability for damages caused by its ordinary negligence resulting in the interruption in the regular supply of service. This limited exemption was validly approved by the Public Service Commission, and is lawful (Lee v Consolidated Edison Co. of N.Y., 95 Misc.2d 120, revd on other grounds 98 Misc.2d 304; Newman v Consolidated Edison Co., 79 Misc.2d 153; see Devers v Long Is. Light. Co., 79 Misc.2d 165). We note that as to damages resulting from the supply or use of electricity, as opposed to damages caused by the interruption of the supply of service, the utility is not absolved from liability for its ordinary negligence (see 16 NYCRR 218.1). While Consolidated Edison would be liable for its gross negligence causing an interruption of service, the record before this court does not establish any conduct constituting gross negligence.
Concur: PINO, P.J. and BUSCHMANN, J.; WEINSTEIN, J., taking no part.