Heeran v. Long Is. Power Auth. (LIPA)

In an action, inter alia, to recover damages for negligence, the defendant Long Island Power Authority (LIPA) appeals, and the defendant National Grid Electric Services, LLC, incorrectly sued herein as Keyspan Electric Services, LLC, separately appeals, from an order of the Supreme Court, Queens County (Siegal, J.), entered July 9, 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, who sustained property damage in the wake of Hurricane Sandy, seek to hold the defendants responsible in negligence. According to the amended complaint, the plaintiffs were owners of real and personal property on the Rockaway Peninsula in Queens. They also were customers of the defend*562ants Long Island Power Authority (LIPA), a public authority {see Public Authorities Law § 1020 et seq.), and National Grid Electric Services, LLC (hereinafter NGES), incorrectly sued herein as Keyspan Electric Services, LLC, a private entity. NGES operated LIPA’s electrical transmission and distribution system under a management services agreement.

On October 26, 2012, as Hurricane Sandy approached, the Governor of the State of New York declared a “State Disaster Emergency” (hereinafter the Declaration of Emergency). Two days later, the Mayor of the City of New York issued a “Proclamation of a State of Emergency and Evacuation Order” (hereinafter the Evacuation Order) with respect to the evacuation of “Zone A,” which included the Rockaway Peninsula. The plaintiffs allege that LIPA and NGES (hereinafter together the appellants) should have foreseen, among other things, that salt water from the storm surge would come into contact with electrical transmission lines, that fires would result if the electrical transmission lines were live, and that the fires would cause property damage. The plaintiffs allege that salt water from the storm surge indeed came into contact with live transmission lines, that fires resulted, and that the fires damaged their property. The plaintiffs allege that in light of what was foreseeable, the appellants were negligent in their preparation for and reaction to the hurricane, including, in particular, their failure to de-energize the Rockaway Peninsula.

The appellants jointly moved pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against them. They contended that LIPA is immune from liability under the doctrine of governmental function immunity because its response to the hurricane — most specifically its decision not to de-energize the Rockaway Peninsula after the Declaration of Emergency and the Evacuation Order were issued — amounted to the performance of a discretionary governmental action. They further insisted that NGES likewise was entitled to the benefit of that doctrine because, under NGES’s agreement with LIPA, NGES was providing an essential governmental function on behalf of LIPA. The Supreme Court denied the motion. LIPA and NGES appeal.

In determining a motion to dismiss a complaint for failure to state a cause of action {see CPLR 3211 [a] [7]), the court must read the complaint liberally and assume that the plaintiffs’ allegations are true. If the allegations, as supplemented by any affidavits, fit within any cognizable legal theory, the court must deny the motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Matter of Long Is. Power Auth. Hurricane Sandy *563Litig., 134 AD3d 1119, 1120 [2015]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

Governmental entities perform a variety of functions. Some of these functions are purely proprietary, others are purely governmental, and others have characteristics of both. The distinction between proprietary and governmental functions is important because the governmental function immunity doctrine applies, as its name suggests, only to the actions of a governmental entity that are properly categorized as governmental functions (see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Granata v City of White Plains, 120 AD3d 1187, 1188 [2014]; Kochanski v City of New York, 76 AD3d 1050, 1051 [2010]). Governmental entities acting in furtherance of a proprietary function will be subject to liability under ordinary principles of tort law (see Miller v State of New York, 62 NY2d 506, 511 [1984]).

“[(Quintessential governmental functions” include police and fire protection; these functions are “acts . . . ‘undertaken for the protection and safety of the public pursuant to the general police powers’” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013], quoting Sebastian v State of New York, 93 NY2d at 793). By contrast, a “government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’ ” (Applewhite v Accuhealth, Inc., 21 NY3d at 425, quoting Sebastian v State of New York, 93 NY2d at 793; see Wittorf v City of New York, 23 NY3d 473, 479 [2014]). Proprietary functions include, for example, the maintenance of roads and highways in a reasonably safe condition (see Wittorf v City of New York, 23 NY3d at 480).

In New York, electric utilities have been “traditionally private enterprises” (Sebastian v State of New York, 93 NY2d at 793 [internal quotation marks omitted]). Moreover, the legislature enacted the Long Island Power Authority Act (Public Authorities Law § 1020 et seq.) for the express purpose of “replacing” the Long Island Lighting Company (hereinafter LILCO), a private utility, with LIPA (Public Authorities Law § 1020-a; see Public Authorities Law § 1020-g [n]). The legislature cited a “lack of confidence” in LILCO (Public Authorities Law § 1020-a). It also expressed its expectation that LIPA would do a better job than LILCO of providing electricity: “the replacement of such investor owned utilities by [LIPA] will result in an improved system and reduction of *564future costs and a safer, more efficient, reliable and economical supply of electric energy” (Public Authorities Law § 1020-a). Thus, the legislature clearly intended that LIPA “substitute for [a] traditionally private enterprise! ]” in the performance of a proprietary function (Sebastian v State of New York, 93 NY2d at 793 [internal quotation marks omitted]).

We conclude that under the analysis long utilized by the Court of Appeals (see Applewhite v Accuhealth, Inc., 21 NY3d at 425; Matter of World. Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011]; Sebastian v State of New York, 93 NY2d at 793; Miller v State of New York, 62 NY2d at 511-512; Riss v City of New York, 22 NY2d 579, 581-582 [1968]), the provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this state, and the legislature clearly created LIPA as a public authority to substitute for a private enterprise (see Applewhite v Accuhealth, Inc., 21 NY3d at 425; Sebastian v State of New York, 93 NY2d at 793).

Our dissenting colleague posits that a “governmental entity’s preparation for a natural disaster or for some other external emergency, and its response during such an event, are generally deemed to be governmental functions.” The underlying premise of this assertion is that the governmental entity is acting in a dual role. When the entity is acting in a dual role, its activities may implicate a “continuum of responsibility” ranging from the most purely proprietary to the most complex governmental (Miller v State of New York, 62 NY2d 506, 511 [1984]; see Marilyn S. v City of New York, 134 AD2d 583, 584 [1987], affd for reasons stated below 73 NY2d 910 [1989]). In those situations, “[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability” (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]; see Marilyn S. v City of New York, 134 AD2d at 584). Our colleague concludes that the appellants’ response to Hurricane Sandy was more akin to the governmental function of policing than it was to the ordinary process of running an electrical utility.

We reject the premise that the appellants were acting in a dual role in operating as an electrical utility. One example of such a dual role is a governmental entity’s ownership of property. When a governmental entity acts as a landlord, it generally has the same tort liability as a private landlord (see Miller v State of New York, 62 NY2d at 511; Granata v City of White Plains, 120 AD3d at 1188-1189). Thus, for example, it *565has a duty, like any other landlord, to maintain its property in a reasonably safe condition (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446-447; Miller v State of New York, 62 NY2d at 511). A governmental property owner may thus be responsible for providing adequate security in the form of working doorlocks or security cameras (see Miller v State of New York, 62 NY2d at 513-514; Granata v City of White Plains, 120 AD3d at 1188-1189).

■ On the other hand, a governmental property owner’s decisions as to the deployment of police and its response to terrorist threats is governmental, rather than proprietary (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 447-448; Miller v State of New York, 62 NY2d at 512; Salone v Town of Hempstead, 91 AD3d 746, 747 [2012]; Pugliese v City of New York, 115 AD2d 465, 465 [1985]). In Matter of World Trade Ctr. Bombing Litig., for example, the Court of Appeals distinguished the security obligations of every landowner from the responsibility of the Port Authority of New York and New Jersey (hereinafter the Port Authority) as a governmental entity: “unlike the safety precautions required of every reasonable landowner, the Port Authority’s security operations featured policy-based decision-making involving due consideration of pertinent factors such as the risk of harm, and the costs and benefits of pursuing a particular allocation of resources. As a result, the Port Authority placed police resources in priority areas deemed more susceptible to attack — i.e., the high-risk plaza and concourse rather than the low-risk parking garage” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 449). Thus, the Port Authority’s “security” obligations with respect to the World Trade Center concerned dual roles: proprietary responsibilities as the owner of property, and governmental responsibility to the public at large in policing functions. In short, the Port Authority’s responsibility in preparing for and responding to a terrorist threat is very different from the responsibility of an ordinary property owner to keep property reasonably safe.

By contrast, the functions of electric utilities in the ordinary course of providing electricity and in responding adequately to a hurricane are both part of the proprietary core functions of their business. True, here, the appellants’ actions, because of the size of LIPA’s customer base, affected many people and many businesses. True, too, LIPA’s response to the hurricane may have involved complex considerations. But every private electric utility in the region faced the same hurricane. For example, Consolidated Edison, Inc. (hereinafter Con Ed), which *566is the main provider of electricity in the City of New York, preemptively de-energized lower Manhattan and certain parts of Brooklyn, including neighborhoods across the water and immediately north of the Rockaway Peninsula, which were areas threatened with flooding, as a means of reducing likely damage to Con Ed’s and its customers’ equipment. It is not simply the size of the task that determines whether an action is governmental or proprietary. The determination must also consider the nature of the responsibility. Simply put, the appellants have not established that their decision not to de-energize the Rockaway Peninsula involved governmental function powers. Accordingly, we disagree that the magnitude of Hurricane Sandy itself shielded the appellants from having to answer in tort for deficiencies in their preparation and response.

LIPA relies on legislation declaring that it exercises “essential governmental and public powers” (Public Authorities Law § 1020-c) and “an essential governmental function” (Public Authorities Law § 1020-p [1]). That designation, however, is present in many laws creating public authorities, many of which may be regarded as engaging in proprietary activities in furtherance of their core purpose (see e.g. Public Authorities Law §§ 902 [7] [Long Island Market Authority]; 1264 [2] [Metropolitan Transportation Authority]; 1427 [2] [White Plains Parking Authority]; 1942 [5] [Upper Mohawk Valley Memorial Auditorium Authority]; 2052-c [5] [Oneida County Sports Facility Authority]; 2502 [New York City Sports Authority], 2751 [6] [Monroe County Airport Authority]; 3301 [5] [Westchester County Health Care Corporation]; 3551 [8] [Roswell Park Cancer Institute Corporation]). The legislative declaration that a governmental entity is engaging in “an essential government function” is relevant in other legal contexts (see e.g. Matter of Long Is. Power Auth. Hurricane Sandy Litig., 134 AD3d at 1121), but it is not determinative with respect to the applicability of the governmental immunity doctrine to shield the entity from tort liability.

Finally, since NGES’s claim of governmental immunity presupposes that LIPA is entitled to governmental immunity, our conclusion that LIPA is not entitled to immunity necessarily rejects NGES’s claim of immunity as well.

The appellants’ remaining contentions are without merit or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly denied the joint motion of LIPA and NGES pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against them.

Balkin, J.P., Austin and Hinds-Radix, JJ., concur.