On April 1, 2025, the First Department issued a decision in Riverdale Jewish Ctr. v. Brooklyn Union Gas Co., 2025 NY Slip Op. 01901, staying a case under the primary jurisdiction pending the determination of issues by the state Public Service Commission, explaining:
Supreme Court providently stayed the action under the primary jurisdiction doctrine. The first cause of action for breach of contract essentially alleges that defendants misapplied their tariffs by charging plaintiffs, religious organizations entitled to residential gas and electric utility rates, corresponding gross revenue tax (GRT) surcharges or, for defendant LIPA, GRT payments in lieu of taxes (PILOT) surcharges at residential customer rates. The second cause of action alleges that, other than LIPA, the GRT surcharges are not just, reasonable, or allowed by law or order of the PSC, in violation of Public Service Law § 65(5). In either case, the determination of whether the utility company misapplied the applicable tariff, resulting in overcharges, and the reasonableness of a utility’s rates, rules, or practices is properly submitted to the agency authorized to regulate and review such matters.
The doctrine of primary jurisdiction also applies to plaintiffs’ claims of fraud, deceptive business practices, or unjust enrichment, even if the agency has no power to award the damages plaintiffs seek in this action. We note also that LIPA is empowered to consider customer complaints, with intermediate steps of review involving the PSC. As such, complaints about its billing practices are properly presented to LIPA under those procedures.
(Internal quotations and citations omitted).