In an apparently unprecedented move, American Metering and Planning Services (AMPS), a company that provides billing and metering service to apartment building owners who submeter electricity to tenants, commenced a lawsuit to collect unpaid charges from a tenant, claiming that AMPS is “entitled to a mandatory injunction requiring . . . access to the subject apartment for the purpose of terminating and disconnecting electrical service thereto.”
AMPS obtained an ex parte Order from a judge of the New York Supreme Court, Bronx County, requiring the tenant to appear in court to show cause why the requested injunction should not be issued. The court papers filed by AMPS did not reveal the existence of a Public Service Commission (PSC) submetering Order, which had granted submetering authority to the tenant’s landlord, not AMPS. That order recites a representation of the landlord that “[i]n no case will electricity be shut down in an apartment for a failure to pay electricity.” The order also requires that in no event will the submeterer charge more for service than Con Edison would charge the tenants if they were separately metered residential customers of the utility.
The tenant contacted PULP for assistance. PULP filed a complaint on the tenant’s behalf with the PSC Office of Consumer Services, seeking to resolve disputes over the amount of the bills and to enforce HEFPA. To PULP’s knowledge, the tenant’s complaint to the Office of Consumer Services is the first to ask the PSC to enforce the price cap and HEFPA protections contained in orders routinely issued to grant submetering authority. PULP issued discovery questions to AMPS under the PSC discovery rules.
PULP appeared in court, opposing the requested injunction for access to the tenant’s apartment to shut off the electricity, and filed a cross motion to dismiss and a brief, making the following points:
- The submetering company has no capacity to sue, because only companies authorized by the PSC can sell electricity, and the PSC authorized the building owner, not the submetering company, to sell electricity to residential customers at the building;
- The complaint failed to allege that Home Energy Fair Practices Act (HEFPA), contained in Article 2 of the Public Service Law and Part 11 of the PSC’s implementing regulations which prescribe numerous conditions that must be met before a utility can terminate service were satisfied. For example, the notice of termination on its face was defective, failed to proffer a deferred payment agreement (DPA) along with the termination notice; and failed to inform the tenant of the availability of PSC complaint procedures to resolve disputed bills;
- There is no provision in HEFPA that allows a typically unrepresented residential customer to be ordered to appear in New York State Supreme Court to shut off service;
- PSL Section 75 bars any recovery because the complaint seeks to recover charges that have not been fixed by order of the PSC;
- The doctrine of “unclean hands” bars equitable relief because the plaintiff failed to disclose to the court that the PSC Order governing submetering in the building was issued on the premise that electric service would not be terminated for nonpayment;
- Because Public Service Law 43.2 provides for a Commission determination of the defendant’s complaint regarding the bills claimed to be due, and the HEFPA violations, the PSC has primary jurisdiction
Before the date for hearing the tenant’s cross motion to dismiss, AMPs discontinued the action.