William Heeran,, et al., Respondents,v.Long Island Power Authority (LIPA), et al., Appellants, et al., Defendants.BriefN.Y.January 9, 2018JOINT REPLY BRIEF FOR DEFENDANTS-APPELLANTS LONG ISLAND POWER AUTHORITY AND NATIONAL GRID ELECTRIC SERVICES LLC I/S/H/A KEYSPAN ELECTRIC SERVICES, LLC LAZER, APTHEKER, ROSELLA & YEDID, P.C. Attorneys for Defendant-Appellant Long Island Power Authority 225 Old Country Road Melville, New York 11747 631-761-0800 HAMMILL, O’BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorneys for Defendant-Appellant National Grid Electric Services LLC i/s/h/a Keyspan Electric Services, LLC 6851 Jericho Turnpike, Suite 250 P.O. Box 1306 Syosset, New York 11791 516-746-0707 APL-2016-00205 Queens County Clerk’s Index No. 702558/13 Appellate Division, Second Department Docket No. 2014-07622 Court of Appeals STATE OF NEW YORK WILLIAM HEERAN, individually and on behalf of HARBOR LIGHT ENTERPRISES CORP. and HARBOR LIGHT PUB CAFÉ, INC., HANNAH J. SWEENEY, CHRISTOPHER BAMBURY, JAMES BARNES, SHAMUS BARNES, CLIFFORD F. & MAUREEN BAUMANN, WILLIAM & MARY BAYER, DEBORAH BLAIR, REGINA SHANNON BODNAR, ALVINA C. BOUGHAL, EILEEN BRAITHWAITE, CATHERINE R. BRENNAN, SINEAD MCSTRAVOG BROGAN, JAMES BUNYAN, KIERAN BURKE, MARY CASTELLANO, ILENE CAVAGNUOLO, GEORGE CLARK, Individually and on behalf of 114-04 ROCKAWAY BEACH BLVD., LLC, DENNIS COOK, EILEEN P. DEERING, ALLEGRA DENGLER, MAUREEN A. DENNELLY, JAMES J. DOYLE, LUCILLE DWYER, SHIELA DURANTI, RICHARD EARLY, SR., FRANK E. FARRELL, (Additional Caption on the Reverse) >> >> Date Completed: April 10, 2017 To Be Argued By: David Lazer Time Requested: 30 Minutes KATHLEEN FITZSIMMONS, FORTUNATO PETER & VALERIE FOTI, KATHERINE GALLAGHER, JUDITH GANUN, TIMOTHY GANUN, HELEN GRAHAM, JEANNETTE DONNELLY GRIFFENKRANZ, ALDIS HAGEN, HELEN HAMMILL, THOMAS HAMMILL, BRUCE HANNAWAY, SUZANNE HASSELMAN, ANNE HESLIN & MARY HESLIN REED, ELAINE FERRARA HETZEL, KATHLEEN HINCHCLIFF, GERARD JORDAN, JAMES & PATRICIA KANE, JEANNE MARIE KEANE, ARTHUR KEAR, WILLIAM KEATING, WILLIAM J. KEATING, Individually and on behalf of EAST MEETS WEST SUPERB CHINESE FOOD, INC., RONALD KRISCHE, EILEEN LAGAN, KATHLEEN LAHEY, BRIAN & TRACY LANG, PATRICIA LANG, VICTOR & PATRICIA LAPLACE, PHILIP & DEBRA LIVOTI, MARIE LOPRESTI, MARIE A. LOPRESTI, JOSEPH LUDOVICO, BERNICE LUHRS, KATHLEEN LUX, RICHARD MAHON, RAYMOND MARTEN, JOHN MATHIS, STEPHEN MCDADE, MARY MCDERMOTT, JEAN MCDONALD, JAMES E. MCGOVERN, MARTIN J. MCGOWAN, CHARLES MCLOUGHLIN, MARTHA MILITANO, GEORGE F. MILLER, DANIEL J. MORAN, MEGAN & JOSEPH MORAN, ELIZABETH MORGAN, JOHN C. MORRIS, PATRICK MULLANEY, JOSEPH NAPOLI, MARK NEGRELLI, JOHN NELSON, RITA NUSSBAUM, ELIZABETH O’GRADY, DONALD OLSEN, PATRICIA A. PINTO, JEANINE POGGIOLI, MARIE POTTER, MICHAEL & NOREEN QUINN, DOROTHY RAFFO, DEAN RASINYA, MAUREEN REGAN, ROBERT R. REILLY, RICHARD & TRICIA ROJAS, THOMAS ROM, MICHAEL RUDOLPH, ROSEMARY RUSSO, MICHAEL SACCO, LOUIS SCHERIFF & MARGARET MCHUGH, JOHN SCHRETZMAYER, EDWARD SCOTT, ROBERT SOMERVILLE, ROBERT STEVER, MARY SUTERA, ELENA TASSO, PATRICIA A. TIETJEN, CHRISTINE M. TKACH, as Executrix of the Estate of GEORGE TKACH, deceased, JOHN TRAN on behalf of THE JOHN JOSEPH TRAN AND JACQUELINE MICHELLE TRAN JOINT LIVING TRUST, RAYMOND A. VANCE, SAMUEL VIVINO, MARY WELSOME, ROLAND W. WERTZ, LORRAINE WIPPER, RONALD WOHL, THOMAS WOODS and BREEZY POINT COOPERATIVE, INC., Plaintiffs-Respondents, against LONG ISLAND POWER AUTHORITY (LIPA), KEYSPAN ELECTRIC SERVICES, LLC, Defendants-Appellants, and NATIONAL GRID PLC a/k/a NATIONAL GRID US8, INC., NATIONAL GRID USA, INC., and KEYSPAN ENERGY TRADING SERVICES, LLC, d/b/a NATIONAL GRID, Defendants. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT .................................................................... 1 POINT I ........................................................................................................... 2 RESPONDENTS, ARMED WITH HINDSIGHT AND THE FREEDOM AFFORDED BY THE PROCEDURAL POSTURE OF THE CASE, FALSELY CHARACTERIZE THE FACTS ................................................... 2 A. Respondents Deliberately Obfuscate The Nature Of Preemptive De-Energization ................................................. 2 B. Respondents Blatantly Attempt to Disparage Appellants’ Integrity By Mischaracterizing Material Outside the Record ................................................................ 6 C. Respondents Deliberately Misrepresent the Moreland Commission’s Interim Findings ............................................ 8 D. Respondents Ascribe Undue Meaning to Statements by LIPA’s Chief Operating Officer ...................................... 9 E. Respondents Misrepresent the Conditions on the Rockaway Peninsula When Superstorm Sandy Struck ......... 9 POINT II ....................................................................................................... 11 DECIDING WHETHER TO DE-ENERGIZE THE ROCKAWAY PENINSULA IS FUNDAMENTALLY DIFFERENT FROM SUPPLYING ELECTRICITY .................. 11 A. Respondents’ False Premise ................................................ 11 B. De-energization is Different from the Ordinary Provision of Electricity ....................................................... 12 ii POINT IV ...................................................................................................... 15 LIPA’S DE-ENERGIZATION DECISIONS DO NOT SUBSTITUTE FOR OR SUPPLEMENT TRADITIONALLY PRIVATE PROPRIETARY ENTERPRISES ............................................................................ 15 POINT IV ...................................................................................................... 20 APPELLANTS MADE A DECISION NOT TO DE- ENERGIZE THE ROCKAWAY PENINSULA ........................ 20 POINT V ....................................................................................................... 22 APPELLANTS’ COMMON-LAW ENTITLEMENT TO GOVERNMENTAL FUNCTION IMMUNITY HAS NOT BEEN ABROGATED ............................................... 22 POINT VI ...................................................................................................... 24 RESPONDENTS’ ARGUMENTS RESPECTING NATIONAL GRID CONFLATE SOVEREIGN IMMUNITY AND GOVERNMENTAL FUNCTION IMMUNITY ................................................................................. 24 A. “Derivative Contractor Immunity” ..................................... 24 B. Respondents Fail to Distinguish Controlling Case Law ...................................................................................... 27 CONCLUSION ............................................................................................. 29 iii TABLE OF AUTHORITIES Page(s) CASES 440 E. 102nd St. Corp. v Murdock, 285 NY 298 (1941) ............................................................................................. 23 Austro v Niagara Mohawk Power Company, 103 AD2d 903 (3d Dept 1984), rev’d on other grounds 66 NY2d 674 (1985) ........................................................................................................... 14 Bates v Holbrook, 171 NY 460 (1902) ............................................................................................. 24 Berties v Nunan, 92 N.Y. 152 (1883) ............................................................................................. 22 Braun v Buffalo Gen. Electric Co., 200 NY 484 (1911) ......................................................................................... 6, 12 Clark v City of New York, 130 AD3d 964 (2d Dept 2015) ........................................................................... 25 Crown Communication New York, Inc. v DOT, 4 NY3d 159 (2005) ....................................................................................... 27, 28 Filarsky v Delia, 566 U.S. 377 (2012) ...................................................................................... 27, 28 Haddock v City of New York, 75 NY2d 478 (1990) ....................................................................................... 4, 26 Johnson v Equitable Life Assur. Soc. of U.S., 16 NY2d 1067 (1965) ........................................................................................... 7 Laratro v City of New York, 8 NY3d 79 (2006) ................................................................................................. 6 Mairs v. Manhattan RE, 89 NY 498 (1882) .............................................................................................. 24 iv Matter of Michael B., 80 NY2d 299 (1992) ............................................................................................. 7 Miller v. State of New York, 62 NY2d 506, 511 (1984) ................................................................................... 16 Miner v Long Is. Light. Co., 40 NY2d 372 (1976) ....................................................................................... 6, 12 Ptasznik v. Schultz, 247 AD2d 197 (2d Dept 1998) ........................................................................... 15 Matter of Ransom v St. Regis Mohawk Educ. & Community Fund, 86 NY2d 553 (1995) ........................................................................................... 26 Sebastian v State of New York, 93 NY2d 790 (1999) ........................................................................................... 12 Steinberg v New York City Tr., 88 AD3d 582 (1st Dept 2011) ...................................................................... 24, 25 Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp., 24 NY3d 538 (2014) ........................................................................................... 26 Tallarico v Long Is. Light. Co., 45 AD2d 845 (2d Dept 1974), aff’d 38 NY2d 733 (1975) ................................. 14 Taylor v Mayor of City of N.Y., 82 NY 10 (1880) ................................................................................................. 23 Transit Commission v Long Island R. Co., 253 NY 345 (1930) ....................................................................................... 22, 23 Turner v Degnon-McLean Contr. Co., 184 NY 525 (1906) ............................................................................................. 24 Valdez v City of New York, 18 NY3d 69 (2011) ............................................................................................... 5 Vucetovic v. Epsom Downs, Inc., 10 NY 3d 517 (2008) .................................................................................... 22, 23 v Weiner v. Metropolitan Transp. Authority, 55 N.Y.2d 175 (1982) ........................................................................................ 16 Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 (2012) ........................................................................... 5, 16, 18, 26 STATUTES 42 U.S.C. §1983 ....................................................................................................... 27 LIPA Act .................................................................................................................. 23 McKinney’s Cons. Laws of N.Y., Book 1, Statutes §301(a)................................... 22 Public Authorities Law §1003 et seq. ...................................................................... 15 http://www.jamestownbpu.com/electric/history.php ............................................... 15 Karger, The Powers of the New York Court of Appeals, 3d ed. §17:7 ..................... 7 Restatement (First) of Agency §347 ........................................................................ 25 PRELIMINARY STATEMENT Defendants-Appellants Long Island Power Authority (“LIPA”) and National Grid Electric Services LLC (“NGES”) submit this reply brief in response to the brief filed by Plaintiffs-Respondents and in further support of Appellants’ appeal. Respondents suffuse their brief with purple prose and myriad irrelevancies to obscure the issue actually presented for determination, being the governmental nature of a public authority’s decisions concerning the safety of the public in a vast, largely urban area during extraordinary storm conditions. Respondents’ brief also strains to create the false impression that Appellants callously and carelessly decided not to black out vast portions of Long Island before Superstorm Sandy to increase profitability. Appellants will not be baited into debating the merits of their decision in this brief. If forced to defend the reasonableness of their decision, Appellants are confident that they acted in accordance with prudent utility practice. For purposes of this appeal, however, whether Appellants made the correct call or not is simply not relevant to the issue of whether governmental function immunity prevents their decision from being second-guessed by a jury in a tort action. Nevertheless, Respondents’ outrageous, demonstrably false assertions demand a response. 2 POINT I RESPONDENTS, ARMED WITH HINDSIGHT AND THE FREEDOM AFFORDED BY THE PROCEDURAL POSTURE OF THE CASE, FALSELY CHARACTERIZE THE FACTS A. Respondents Deliberately Obfuscate The Nature Of Preemptive De-Energization Respondents misrepresent the nature of the de-energization process, eliding the distinction between shutdowns in the face of imminent system failure on the one hand and preemptive de-energization in advance of a storm on the other, and suggest that preemptive de-energization is akin to flipping a light switch. Respondents argue with no citation of authority, for example, that de-energization “is a well-documented methodology by which utilities eliminate or control damage for a variety of adverse events[,]” such as “extreme heat, when notified of down and arcing lines and during adverse weather events.” Resp.Br. 36. The issue relevant to governmental function immunity, however, is not the mechanics but the public safety implications of any preemptive de-energization decision made by a public authority. Respondents are fully aware of this, having alleged that Appellants should have preemptively de-energized LIPA’s system before the high winds and flooding from the storm began to strike the region to protect the public from the risks of fire 3 that were allegedly caused by the storm’s effect on electrical equipment (45, 207)1. Indeed, the sine qua non of Respondents’ claims is that Appellants breached a duty to protect the public by not deciding to intentionally black out the Rockaway Peninsula (“Peninsula”) before Sandy arrived. Respondents’ claims must be seen for the extent to which they overreach. If, as Respondents’ claim, Appellants had a duty to de-energize the Rockaway portion of the LIPA service area in advance of the storm, they provide no standard by which to measure where else within the service area such duty also applied and where it did not. Without any standard against which such duty “to protect the public,” and where the duty “to protect the public” required that the system remain energized, could be measured, the extent of the governmental discretion that LIPA is required to exercise is laid bare. Respondents’ claims by themselves expose a dilemma – the very type of “between Scylla and Charybdis” choice to which the common law duty of governmental immunity is intended to apply. Due to the public safety implications of cutting off power to a densely populated region about to be struck by a storm, preemptive de-energization before a storm, as alleged here, carries prodigious public safety implications. Preemptive de-energization of a wide area before a storm occurs rarely and requires extensive coordination with the evacuation activities of municipal governments, as 1 Numbers in parenthesis refer to pages in the record on appeal. 4 confirmed by Respondents’ own submissions (339, 444, C.665).2 Unlike a shutdown when discrete failure of system components becomes imminent, preemptive de-energization of an area requires LIPA to predict which parts of the system are likely to fail and which regions served by that system are likely to remain populated. As Respondents observe, potential flooding was predicted for much of Long Island’s south shore (341). Indeed, LIPA’s service territory includes more than 120 miles of south shore coastline from Breezy Point to Montauk Point. Whether the Peninsula should have been preemptively de- energized necessarily implicates whether the other 110+ miles of coastline also should have been. Thus, the duty Respondents seek to impose would have necessarily required Appellants to cut the power from large swaths of Long Island. The nature of preemptive de-energization bears directly on the question of whether decisions related thereto are governmental or proprietary. To illustrate, preemptive de-energization before a storm, by its very nature, requires discretionary decisions based on predictions. Decisions of that nature are especially prone to second-guessing by plaintiffs emboldened by the certainty that only hindsight can produce, and the governmental function immunity doctrine protects government officials from just such second-guessing by plaintiffs and juries. See Haddock v City of New York, 75 NY2d 478, 484 (1990); see also 2 Page references preceded by “C” refer to the Record on Appeal in the companion appeal, Connolly v LIPA. 5 Valdez v City of New York, 18 NY3d 69, 76 (2011). Further, preemptive de- energization of flood prone areas -- the precaution Respondents allege LIPA should have taken -- itself endangers the public safety. A continuous source of electricity is required to operate traffic signals, elevators, etc. Preemptive de-energization requires LIPA and affected local municipalities to expend public resources to mitigate those risks, which exist in large portions of LIPA’s service area, through municipal evacuations. See Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 438-439 (2012). When, prior to Sandy, Con Edison contemplated potential de-energization of but two discrete sections of a single borough, the planning required the involvement of a plethora of City, State, and local agencies and officials (444). LIPA’s service area includes coastal communities from Breezy Point to Montauk. A preemptive de-energization by LIPA of its coastal service areas before a storm, as Respondents’ liability theory would make LIPA’s duty, would entail an even more complex undertaking, mandating a State public authority’s coordination with and cooperation from three counties, as well as the myriad affected towns, villages, police departments, fire departments, agencies and officials. Yet, Respondents ask this Court to accept that a public authority’s decision not to de-energize a region is no more governmental than one to conduct routine maintenance on any “blue sky day.” 6 The predictive nature of the decision to preemptively de-energize combined with the public safety risks posed by the precaution itself make LIPA especially vulnerable to the “Catch-22” that governmental function immunity seeks to prevent. See Laratro v City of New York, 8 NY3d 79, 81 (2006). This dilemma does not exist in all tort cases, but does here because the precaution Respondents argue LIPA should have taken – preemptive de-energization – itself creates a self- evident public safety danger. This “precaution” stands in stark contrast to properly insulating wires and locating them a safe distance from the ground, which do not create their own public safety risks. E.g., Miner v Long Is. Light. Co., 40 NY2d 372, 378-379 (1976), and Braun v Buffalo Gen. Electric Co., 200 NY 484, 490 (1911). Respondents’ focus on the mechanics of shutting down a distribution system rather than on the decision to do so or not is a deliberate attempt to avoid the public safety implication of the decision and its inextricable link with municipal evacuations. B. Respondents Blatantly Attempt to Disparage Appellants’ Integrity By Mischaracterizing Material Outside the Record Respondents also repeatedly refer to documents exchanged during discovery taken while this appeal has been pending. See Resp.Br. 9, 26 & 37. These documents have no bearing on whether Appellants are entitled to governmental function immunity. Respondents’ appellate counsel should know that “matters 7 outside the record cannot be considered by an appellate court” absent extraordinary circumstances not present here. See Karger, The Powers of the New York Court of Appeals, 3d ed. §17:7 (quoting Matter of Michael B., 80 NY2d 299 (1992)). Additionally, this Court lacks the power “to make a ‘first instance evaluation’ of any of the questions of fact in such a case.” Id. (quoting Johnson v Equitable Life Assur. Soc. of U.S., 16 NY2d 1067, 1068-1069 (1965)). The only exception to this fundamental precept of appellate practice applies when the information “is of an incontrovertible character.” Id. The deposition testimony not contained in the record falls far short of that standard, and even Respondents lack the temerity to argue otherwise. Respondents characterize the deposition testimony as conclusive proof NGES made the decision to de-energize, but Respondents mischaracterize the deposition testimony, just as they have mischaracterized the record evidence. Further, Respondents ignore the documents obtained in discovery that refute Respondents’ mischaracterization and confirm that Appellants decided not to de-energize the Rockaway Peninsula. Thus, the Court cannot consider Respondents’ shameless references to evidence outside the record. 8 C. Respondents Deliberately Misrepresent the Moreland Commission’s Interim Findings Respondents also argue that the Moreland Commission found LIPA lacked protocols for flooding and de-energization. In Respondents’ own words, “no plan for de-energization was ever put in place.” Resp.Br. 21. This statement is false. The Moreland Commission Interim Report relied on by Respondents found that LIPA had protocols for de-energization, stating: “Pursuant to protocols in place for such flooding, the applicable utility shuts down or de-energizes those areas in anticipation of significant flooding and in coordination with evacuation activities” (339). The Interim Report also states that during a July 2012 emergency response drill, Appellants discussed plans for de-energization (340). Consistent with this finding, Appellants notified the public of which regions it intended to de- energize and, in fact, preemptively de-energized those areas (438-444). The reference to an “absence of any written protocol” (340) pertains to “safety inspections or to the re-energization of flooded areas.” (339-340) (emphasis added).3 Thus, Respondents’ statement that “no plan for de-energization was ever put in place” is false. Resp.Br. 21. 3 The Final Report, of which this Court may take judicial notice, also focused on maintaining and restoring power, not on de-energizing regions. 9 It is also legally irrelevant. Appellants decided not to de-energize the Peninsula, see Point IV infra, and are immune from liability arising from that decision. D. Respondents Ascribe Undue Meaning to Statements by LIPA’s Chief Operating Officer Respondents argue that LIPA’s Chief Operating Officer Michael Hervey stated that the Rockaway Peninsula had been preemptively de-energized and that the fires were therefore not caused by “‘an electrical system issue.’” Resp.Br. 24. From this premise, Respondents argue that LIPA did not make a decision about preemptively de-energizing the Peninsula. Mr. Hervey stated that the LIPA’s system “was de-energized preemptively at the time when the fire occurred.” (467). It is unnecessary to parse the statement for accuracy or inaccuracy. If accurate, it refutes the factual predicate of Respondents’ claim; if inaccurate, it is irrelevant because, as Appellants explain in Point IV below, the record demonstrates that LIPA made a decision not to preemptively de-energize the Rockaway Peninsula. E. Respondents Misrepresent the Conditions on the Rockaway Peninsula When Superstorm Sandy Struck Respondents also attempt to create the impression that blacking out over 1,000 homes before Superstorm Sandy struck was the obvious course of action, and LIPA simply forgot to turn the lights off on its way out. Respondents 10 insinuate nonsensically that there existed no downside to cutting off power to the Peninsula because it was vacant. See Resp.Br. 46. Respondents declare: “Breezy Point was evacuated by 7 p.m. on October 28, 2012, more than a day before the storm surge hit.” Id. Respondents are well aware that is false. Although the City issued an evacuation order on October 28, 2012, requiring the public to evacuate by 7 p.m. that same day (429), the order did not require “authorized government personnel and essential emergency personnel, and patients and residents of hospitals, nursing homes and senior homes” to evacuate (430). The record contains no evidence that the City confirmed that the area subject to the order was in fact vacant, as Suffolk County did on Fire Island. Moreover, it is indisputable that the Peninsula was not vacant on the day of the storm. Respondents repeatedly misrepresent that fact to trivialize the tremendous public safety implications inherent in decisions about preemptive de-energization.4 4 It is shameful that Respondents would claim that the Peninsula was vacant/evacuated on the evening Superstorm Sandy struck. Are they honestly suggesting that none of their clients and non-party witnesses were there that night? In any event, the evidence in the record adequately refutes Respondents’ false narrative (297-300, 301-318). 11 POINT II DECIDING WHETHER TO DE- ENERGIZE THE ROCKAWAY PENINSULA IS FUNDAMENTALLY DIFFERENT FROM SUPPLYING ELECTRICITY Turning to Respondents’ legal arguments, the brief sets forth several arguments. None has merit.5 A. Respondents’ False Premise Respondents’ brief rests on the premise that the decision not to de-energize the Rockaway Peninsula in advance of Superstorm Sandy is equivalent to providing electricity on a blue-sky day. According to Respondents, “the provision of electrical and other utility services has always involved private functions, even those undertaken in cooperation with governmental entities. The duty is one of ordinary reasonable care, and a utility that breaches that duty is liable under ordinary tort principles.” Resp.Br. 5 (internal citations omitted). Likewise, Respondents argue that “maintenance of [LIPA’s] wires and provision of electrical services” do not “become governmental when [Appellants] face a natural disaster.” Id. at 35. Therefore, Respondents erroneously conclude, the decision not to de- 5 Appellants will not address Respondents’ legally irrelevant, deliberately provocative arguments, such as the argument about alleged entity confusion, LIPA’s corporate structure, Appellants’ alleged profit motive not to de-energize, and comments on the storm by President Obama and Governor Cuomo. . 12 energize the Peninsula is a proprietary function, irrespective of its widespread public safety implications and effect on the allocation of governmental resources. B. De-energization is Different from the Ordinary Provision of Electricity The ordinary provision of electricity differs fundamentally from choosing whether to de-energize the entire Peninsula and other flood-prone areas across Long Island’s coast in advance of Superstorm Sandy because LIPA’s decision, as alleged, is “aimed at” the protection of “society as a whole.” Sebastian v State of New York, 93 NY2d 790, 795 (1999). Respondents expressly allege that LIPA undertakes “the de-energization process...to protect the public” (45, 207) (emphasis supplied), and “afford protection from fires” (C.54), by avoiding “contact of sea water with live electrical systems” which allegedly resulted in “short circuits and fires”(C.59). Deciding whether to de-energize the Peninsula, home to more than 100,000 people (2010 census: population 114,978), is inarguably a decision about public safety. The public safety implications of decisions about whether to cut off power to thousands of homes, businesses and nursing homes before a major storm dwarfs the public safety implications of ensuring an electrical wire is properly insulated and located a safe distance from the ground. See Resp.Br. 5, 31 (citing Miner v Long Is. Light. Co., 40 NY2d 372, 378-379 (1976), and Braun v Buffalo Gen. Electric Co., 200 NY 484, 490 (1911). 13 Quite obviously, if the law required LIPA to preemptively cut power off to areas that were likely to flood, as Respondents argue, LIPA’s tort duty would have extended far beyond the Peninsula to include most of Long Island’s south shore. Such a duty would necessarily require LIPA to make discretionary decisions about public safety before every storm event and coordinate its preemptive de- energization with local municipalities every time the weather was predicted to become particularly fierce. And LIPA’s duty would not stop there. LIPA also would have to preemptively de-energize areas prone to high winds to prevent possible fires from downed power lines, as Respondents allege in their amended complaint. How high would the waters have to rise (or be predicted to rise) or how many miles per hour would the winds have to blow (or be forecasted to blow) to trigger the “duty” to de-energize? Respondents do not and cannot say, except to say that LIPA’s decisions in this regard are “proprietary.” A tort duty that implicates public safety so profoundly will necessarily require legislative-executive decisions. For example, since a region must be evacuated before Appellants can safely de-energize the electrical network (339), LIPA and local municipalities must consider numerous factors before a preemptive de-energization, as detailed in the Appellants’ main brief. See App.Br. 43-44. The staggering public safety implications of such a tort duty sets preemptive de- energization apart from the routine provision of electricity, such as repairing and 14 maintaining individual power lines, which do not carry safety implications for the public as a whole. Nevertheless, Respondents contend that “the failure to de-energize can be negligence in appropriate circumstances.” See Resp.Br. 38 (citing Austro v Niagara Mohawk Power Company, 103 AD2d 903, 904 (3d Dept 1984), rev’d on other grounds 66 NY2d 674 (1985); Tallarico v Long Is. Light. Co., 45 AD2d 845 (2d Dept 1974), aff’d 38 NY2d 733 (1975)). These cases involved a utility’s failure to de-energize a particular electrical wire knowing workers would be close by. By contrast, Respondents allege that Appellants should have de-energized the entire Rockaway Peninsula, and by extension all Long Island areas prone to flooding or high winds, before Superstorm Sandy struck. That decision necessarily implicates the public safety in ways not present in a decision to de-energize a particular wire as part of the normal maintenance and repair of power lines. Respondents cite no applicable precedent for their theory. 15 POINT IV LIPA’S DE-ENERGIZATION DECISIONS DO NOT SUBSTITUTE FOR OR SUPPLEMENT TRADITIONALLY PRIVATE PROPRIETARY ENTERPRISES Respondents argue that “[t]he key question here is whether plaintiffs’ claim involves services traditionally supplied by the private sector, and there is no dispute that it does…” Resp.Br. 11. Respondents’ premise – that electricity has historically been provided by the private sector – is false. New York State has a long history of public electricity. The City of Jamestown began providing power to its residents in 1891.6 The New York Power Authority (NYPA) has been in existence since the 1930’s. See Public Authorities Law §1003 et seq.; see also L. 1939, c. 870.7 Currently, 47 municipalities own and operate utilities in New York State.8 Respondents essentially ignore these facts. In any event, the proper inquiry is not the history of LIPA’s “core function” of providing electricity, but the nature of the specific act or omission allegedly causing the harm – the decision not to de-energize the Peninsula. This Court 6 See http://www.jamestownbpu.com/electric/history.php. The Court can take judicial notice of this fact, which “rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven.” Ptasznik v Schultz, 247 AD2d 197, 198-199 (2d Dept 1998). 7 Respondents opine that NYPA “primarily sells electricity to New York’s utilities not to individual consumers.” The relevance of this fact is not immediately apparent, and Respondents do not bother to explain its significance. 8 See http://www.jamestownbpu.com/electric/history.php. 16 expressly contemplated such a situation when it noted that a public entity may perform a “dual role,” simultaneously conducting both proprietary and governmental functions. Miller v. State of New York, 62 NY2d 506, 511 (1984); see Weiner v. Metropolitan Transp. Authority, 55 N.Y.2d 175, 180 (1982); World Trade Ctr., 17 NY3d at 440. Consistent with this Court’s instructions, the focus of the analysis is LIPA’s decision not to imperil the public by blacking out Long Island’s many flood-prone regions before Sandy struck. Respondents complain that the government has not historically made decisions about whether to cut power to massive portions of the public. This observation begs the question. Decisions about preemptive de-energization are, by their very nature, decisions about public safety, according to the amended complaint, which alleges that the purpose of preemptive de-energization “is to protect the public from fire and electrical hazards...” (45, 207). LIPA’s governmental duty to protect the public is profoundly different from its proprietary duty to operate a utility with reasonable care. The most important difference is that protecting the public is historically a governmental function. Merely providing electricity – so that the lamp or television set will go on – clearly is not. That these two functions cannot be equated is incontestable. 17 Respondents complain that there is no case law recognizing de-energization decisions to be governmental duties, but the lack of such precedent is hardly surprising given that Respondents’ preemptive de-energization liability theory is itself unprecedented. In any case, LIPA’s decision about which regions to continue to power during a storm has the same effect on the public safety and the consequences for failures related thereto will have the same effect on legislative- executive decision-making and the public fisc as decisions about police, fire and emergency medical care. LIPA’s de-energization of Fire Island illustrates the intense level of coordination between LIPA and local municipalities. Suffolk County ordered and executed a mandatory evacuation of Fire Island (439). Appellants confirmed with Suffolk County that it would only de-energize Fire Island “upon completion of the evacuation” (439)(emphasis added), and the State’s status report as of 11 p.m. on October 28, 2012 stated that “LIPA...de-energized Fire Island following the evacuation today” (444). Appellants’ coordination went even so far as to identify a specific “critical care customer” on Fire Island and instruct Suffolk County to ensure that “local [police and fire departments] check that [this particular critical care customer]” left Fire Island (439). Thus, preemptive de-energization, as alleged here, is inextricably linked with the efforts of local municipalities. Faced 18 with this inescapable fact, Respondents do not even assert a token counter- argument in response. Respondents’ observation that Con Edison also made decisions about de- energizing portions of its service area does not change this analysis, and in fact the record supports Appellants’ position. First, Con Edison’s electrical system is different from LIPA’s system. The de-energized portion of Con Edison’s system is located entirely underground (444) in contrast to LIPA’s overhead system. Second, Con Edison shut down service to “90 customers” in order “[t]o protect the steam system from damage that could be caused by cold water coming into contact with the steam pipes...” (Id.)(emphasis supplied). The same State pre-storm status report indicated that Con Edison was “preparing for the potential shutdown of two Lower Manhattan electric networks,” not that Con Edison had actually done so. Most significantly, that contemplated shutdown of electric service in two locations “will be coordinated with customers and the City and State Offices of Emergency Management, NYPD, NYC Housing Authority, MTA, elected officials and local municipalities” (444)(emphasis supplied). In contrast, Respondents allege that LIPA should have de-energized flood- prone regions of its service area to protect the public (45, 207). The fact that Con Ed and LIPA each preemptively de-energized certain portions (not all) of their 19 low-lying service areas does not make LIPA’s decisions any less governmental, where LIPA is a public authority and, according to Respondents themselves, its de- energization decisions implicate public safety. As this Court observed in Miller (Kaye, J., concurring), “a governmental agency performing that same activity [as a commercial entity] does not have the same obligation...” 62 NY2d at 514. See also, Weiner, 55 NY2d at 182. 20 POINT IV APPELLANTS MADE A DECISION NOT TO DE-ENERGIZE THE ROCKAWAY PENINSULA Respondents argue that governmental function immunity is unavailable to Appellants because “[t]here is no indication that a conscious decision was made or various courses of action considered that could trigger immunity...” Resp.Br. 25. Respondents mischaracterize the record. On October 28, 2012, Appellants’ notified the public via Twitter that it had de-energized Fire Island but had “no current plans to de-energize any parts of Long Island other than Fire Island” (438). The record also contains a summary of LIPA’s key messages to relay to customers (441-442), stating that LIPA would de- energize Fire Island but did not have plans to de-energize any other part of Long Island (441). The same information was put on LIPA’s website and Twitter (438, 448). These messages clearly convey that Appellants had decided which areas were appropriate to de-energize, such as Fire Island, and which were not, such as the Peninsula. Moreover, the contrast between the Peninsula and Fire Island confirms that LIPA made a decision not to de-energize the Peninsula. LIPA de-energized Fire Island only after Suffolk County had executed an evacuation and confirmed that Fire Island was vacant (439, 443, 444). The Peninsula undeniably was not vacant. 21 Where other local municipalities did not order an evacuation and confirm that everyone had vacated the area, Appellants treated those communities the same way they treated the Peninsula. For example, although Suffolk County evacuated Fire Island, the evacuations did not include “Gilgo Beach” or “Captree island[,]” and Appellants confirmed with Suffolk County that it would “maintain power supply to those areas.” (439). These decisions were consistent with the Moreland Commission Interim Report’s statement that de-energization occurs “in coordination with evacuation activities” (339). This evidence establishes that Appellants decided not to preemptively de- energize the Peninsula. Indeed, if the issue that Respondents had to prove was “did LIPA make a decision not to de-energize,” Respondents would be arguing that the very same emails, website and Twitter information would conclusively establish that LIPA did make such a decision. 22 POINT V APPELLANTS’ COMMON-LAW ENTITLEMENT TO GOVERNMENTAL FUNCTION IMMUNITY HAS NOT BEEN ABROGATED Respondents argue that Appellants are not entitled to governmental function immunity because of LIPA’s tariff, which only permits liability for harm arising from the negligent supply of electricity and the grossly negligent interruption of service (217-218). See Resp. Br. at 32-36. The flaw in this argument stems from a misunderstanding of governmental function immunity. Governmental function immunity is a common law defense. Any statutes in derogation of this common law right must be strictly construed. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes §301(a); Transit Commission v Long Island R. Co., 253 NY 345, 355 (1930). “Rules of the common law are to be no further abrogated than the clear import of the language used in the statute absolutely requires.” Transit Commission, 253 NY at 355; see also Berties v Nunan, 92 N.Y. 152, 158 (1883). A fortiori, a statute can never abrogate common-law rules by implication, as Respondents argue, based solely upon the absence of a Legislative discussion. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 301(b); Vucetovic v. Epsom Downs, Inc., 10 NY 3d 517, 522 (2008) (Administrative Code statute transferring to adjoining owners City’s common law tort liability for 23 sidewalk maintenance did not include tree wells “[g]iven the statutory silence and the absence of any discussion of tree wells in the legislative history”). See also, 440 E. 102nd St. Corp. v Murdock, 285 NY 298, 304 (1941); Taylor v Mayor of City of N.Y., 82 NY 10, 19-20 (1880). By the time the LIPA Act was debated and enacted in 1986, governmental function immunity was settled law. See, e.g., Miller (1984); Weiner (1982); Riss (1968). If liability was to be imposed on LIPA in derogation of common law by statutory waiver of that immunity, the statute “needed to use specific and clear language to accomplish this goal.” Vucetovic, supra at 522. None of the statutes or regulations related to the tariff expressly refers to the governmental function immunity doctrine. For this precise reason, the “clear import of the language used in the[se] statute[s]” does not “absolutely require[]” the abrogation of the immunity. Transit Commission, 253 NY at 355; see 440 E. 102nd St. Corp., 285 NY at 304; Taylor, 82 NY at 19-20. 24 POINT VI RESPONDENTS’ ARGUMENTS RESPECTING NATIONAL GRID CONFLATE SOVEREIGN IMMUNITY AND GOVERNMENTAL FUNCTION IMMUNITY Respondents argue that even if LIPA were immune, NGES, being a “private contractor,” may not “borrow” LIPA’s governmental function immunity. Resp.Br. 39. The flaw in Respondents’ argument stems from the failure to distinguish sovereign immunity from governmental function immunity.9 A. “Derivative Contractor Immunity” In support of their argument that New York has not recognized any form of derivative government function immunity for contractors, Respondents cite Bates v Holbrook, 171 NY 460 (1902), and the even more ancient Mairs v. Manhattan RE, 89 NY 498 (1882). (The companion Connolly Respondents’ Brief adds Turner v Degnon-McLean Contr. Co., 184 NY 525 (1906)). These cases refer to the availability of sovereign immunity, not governmental function immunity, to government contractors. Indeed, they predate by many decades the emergence of the latter doctrine, which followed the State’s waiver of the former. Respondents cite Steinberg v New York City Tr., 88 AD3d 582, 582 (1st Dept 2011), to support the proposition that governmental function immunity does 9 For unfathomable reasons, Respondents also appear to contend that NGES’s compensation arrangement for managing LIPA’s vast distribution network disqualifies it from receiving derivative immunity. Needless to say, no supporting authority is provided. 25 not apply to government contractors. In Steinberg, however, the contractor’s alleged negligence arose from the contractor’s subway construction activities, which were “proprietary, not governmental, in character.” Steinberg, 88 AD3d at 582. Thus, Steinberg is dicta to the extent it can be read to suggest that government contractors can never be entitled to governmental function immunity. Respondents also rely on Clark v City of New York, 130 AD3d 964 (2d Dept 2015), in which the plaintiffs sued the City and its contractor for failing to protect them from third party criminal acts. The Appellate Division held that governmental function immunity precluded plaintiffs’ suit against the City, but allowed it proceed against the City’s contractor where the plaintiffs were third- party beneficiaries of the City’s agreement with its contractor. Id. at 965. Respondents here have not been determined to be third-party beneficiaries to LIPA’s contract with NGES. Respondents also criticize Appellants’ observation that the distinction between sovereign immunity and governmental function immunity is consistent with general agency principles. Respondents correctly state the principle that an agent who is acting in within the scope of his authority “‘has such immunities of the principal as are not personal to the principal,’” Resp.Br. 40 (quoting Restatement (First) of Agency §347), but assert that “government function 26 immunity is ‘personal to the principal’” and “therefore [does] not pass to [the principal’s] agent.” (Id.) Governmental function immunity is not “personal to the principal”; it protects governmental entities only when the government engages in specific activities that fulfill a duty to the public so that officials can freely exercise their judgment without the specter of excessive liability. World Trade Ctr., 17 NY3d at 445-446 (internal quotation marks omitted); see Haddock, 75 NY2d at 484. Thus, governmental function immunity focuses on the essential character of the activity and protects only those activities that fulfill a governmental duty to the public as a whole. Accordingly, governmental function immunity is not personal to the principal; it depends on the act or omission that caused the harm. The recent decision by this Court cited by Respondents, Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp., 24 NY3d 538 (2014), does not change this analysis. See Resp. Br. at 40. Sue/Perior involved sovereign immunity, not governmental function immunity. The Court applied the standard articulated in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund, 86 NY2d 553 (1995), which has never used outside the context of determining “whether a particular tribal organization is an ‘arm’ of [the Seneca Nation of Indians] entitled to share the tribe’s immunity from suit.” Id. at 559. 27 B. Respondents Fail to Distinguish Controlling Case Law Respondents also attempt to distinguish Altro, Filarsky and Crown but fail to identify any legally relevant difference. Respondents, for example, recite the facts in Altro and, without any analysis, conclude that “[t]he situation at bar is not remotely similar.” Resp.Br. 41. Respondents are correct that Altro involved a breach of contract cause of action. Respondents, however, do not explain why a government contractor would be entitled to governmental function immunity in a breach of contract case but not a tort case when the effect on the public fisc and allocation of governmental resources is the same. Respondents seek to distinguish Filarsky v Delia, 566 U.S. 377 (2012) on the grounds that the United States Supreme Court recognized immunity because “the conduct in question was not clearly unlawful at the time it occurred.” Resp. Br. 41. Immunity to a private entity does not require “that defendants would have known that their actions were unlawful.” Resp.Br. 41 (quoting Filarsky, 566 U.S. at 382-383). That language was quoted with reference to the particular manner that qualified immunity applies in the context of a claim commenced under 42 U.S.C. §1983. Filarsky, 566 U.S. at 382. Moreover, Filarsky illustrates that affording NGES immunity for the governmental functions that LIPA contracted it to perform also supports the State’s public policy of attracting talented governmental contractors. See Filarsky, 566 28 U.S. at 391. If only governmental employees are immune from liability, “those working alongside them could be left holding the bag – facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity. Under such circumstances, any private individual with a choice might think twice before accepting a government assignment.” Filarsky, 566 U.S. at 391. Thus, Respondents fail to distinguish Filarsky in any meaningful way. Respondents argue that Crown Communication New York, Inc. v DOT, 4 NY3d 159 (2005), concerned a zoning dispute, not subject to the governmental- proprietary distinction that governs the tort liability of municipal entities. Resp.Br. 40-41. Nonetheless, the Court’s reasoning supports Appellants’ arguments that refusing to recognize NGES’s immunity would defeat the purpose of recognizing immunity to government entities. Specifically, this Court reasoned that a private entity and the municipality were both immune from zoning requirements that precluded the installation of private antennae on two state-owned telecommunications towers because “[s]ubjecting the private carriers to local regulation in this case ‘could otherwise foil the fulfillment of the greater public purpose of promoting’ the State’s public safety and environmental goals associated with its telecommunications infrastructure development plan.” Crown, 4 NY3d at 168. Refusing to recognize NGES’s immunity here would likewise foil the State’s public safety goals, which are furthered by LIPA’s governmental immunity. 29 CONCLUSION Based on the foregoing, the Court should reverse the order of the Appellate Division and dismiss the amended complaint in its entirety as against Defendants- Appellants LIPA and NGES. Dated: Melville, New York April 10, 2017 Respectfully submitted, LAZER, APTHEKER, ROSELLA & YEDID, P.C. Attorneys for Defendant-Appellant LONG ISLAND POWER AUTHORITY By: David Lazer 225 Old Country Road Melville, New York 11747 (631) 761-0810 HAMMILL, O’BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorneys for Defendant-Appellant NATIONAL GRID ELECTRIC SERVICES LLC By: William J. Croutier, Jr. 6851 Jericho Turnpike, Suite 250 Syosset, New York 11791 (516) 746-0707 Of Counsel: David Lazer Zachary Murdock William J. Croutier, Jr. CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer using Microsoft Office Word 2013. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double Word Count: The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statues, rules, regulations, etc. is: 5,738. Dated: Melville, New York April 10, 2017 LAZER, APTHEKER, ROSELLA & YEDID, P.C. By Zachary Murdock Attorneys for Defendants-Appellants Long Island Power Authority and Long Island Lighting Company 225 Old Country Road Melville, New York 11747 (631) 761-0800