Commercial Division Blog

Posted: November 27, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Jurisdiction, Motion to Dismiss

Court Dismisses Claims Against Public Utility Company ConEd under Primary Jurisdiction Doctrine, Deferring to State Agency

In an Amended Decision and Order, dated October 24, 2023, in Riverdale Jewish Center v. Consolidated Edison Company of New York, Inc., Index No. 651032/2022, Justice Margaret A. Chan granted Defendant ConEd’s motion to dismiss claims against it for deceptive business practices and affirmative misrepresentation based on allegedly misleading billing inserts.  Public utility company ConEd provides gas and electric services to many areas of New York State.  The Court ruled that New York’s Public Service Commission had direct regulatory jurisdiction over ConEd’s billing inserts and, therefore, the Court should defer to the agency, rejecting the Plaintiff’s arguments that the question of whether an insert was deceptive fell within the Court’s, not the agency’s, expertise.  The Court explained: 

[T]he doctrine of primary jurisdiction is intended to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statues with which both are concerned and to the extent that the matter before the court is within the agency’s specialized field, to make available to the court in reaching its judgment the agency’s views concerning not only the factual and technical issues involved but also the scope and meaning of the statute administered by the agency. . . .

While plaintiff argues that determining whether a statement is misleading does not require agency technical or specialized knowledge, the court sees more than just a fragment of a sentence as the sole concern in this issue. . . . If it were, and this court did as the plaintiff invites, it would upend the statutes empowering agencies’ scope of authority rendering them ineffective and have courts second guess the agencies’ expertise.

The attorneys at Schlam Stone & Dolan frequently litigate disputes concerning conflicting court and agency jurisdiction. Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.