Vasile v Keyspan Energy Delivery

[*1] Vasile v Keyspan Energy Delivery 2008 NY Slip Op 51109(U) [19 Misc 3d 144(A)] Decided on May 27, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM, and SCHEINKMAN, JJ
2007-794 S C.

Carmine F. Vasile, Appellant,

against

Keyspan Energy Delivery, Respondent.

Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), dated April 17, 2007. The order granted defendant's motion to dismiss the action.

Order affirmed without costs.

Plaintiff brought this small claims action seeking to recover money for alleged "mail fraud and conspiracy to collect illegal surcharges."

The court below properly granted the motion by defendant KeySpan Energy Delivery (KeySpan) to dismiss the action as barred by the filed rate doctrine, which holds that "any 'filed rate'—that is, one approved by the governing regulatory agency—is per se reasonable and unassailable in judicial proceedings brought by ratepayers" (Wegoland Ltd. v NYNEX Corp., 27 F3d 17, 18 [1994]). Plaintiff's attempts to characterize his claims as being grounded in other causes of action, such as fraud, are unavailing because "a consumer's claim, however disguised, seeking relief for an injury allegedly caused by the payment of a rate on file with a regulatory commission, is viewed as an attack upon the rate approved by the regulatory commission. All such claims are barred by the filed rate doctrine'" (Porr v NYNEX Corp., 230 AD2d 564, 568 [1997]).

In his papers below, plaintiff conceded that KeySpan acted only as an agent for Long Island Power Authority (LIPA), a disclosed principal, in collecting rates and fees set by LIPA. Acting as an agent would not impose liability on KeySpan (Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1 [1964]). In light of the fact that plaintiff's claims are all directed at rates and [*2]fees set by LIPA, not Keyspan, and that KeySpan acted only as an agent for LIPA in collecting those fees, the court's decision to grant Keyspan's motion to dismiss provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1807).

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.