Utilities Not Immune From Hurricane Sandy Lawsuits: NY High Court

FAR ROCKAWAY, QUEENS -- Dozens of Rockaway residents who accused Long Island Power Authority of negligence toward post-Hurricane Sandy fires that tore through their homes are a step closer to battling the utility company in court.

The New York State Court of Appeals on Tuesday refused the utility's requests to throw out the lawsuits of 120 Far Rockaway residents, who blamed LIPA and National Grid for post-Sandy electric fires that destroyed their homes. They claim the utilities failed to shut down power to the Rockaway Peninsula before - and during - the 2012 superstorm.

Residents from Breezy Point, Rockaway Park and Belle Harbor filed lawsuits against the New York-based utilities in 2013 that claimed they failed to properly prepare for the storm, despite several warnings to do so.

Those warnings include Gov. Andrew Cuomo declaring a state of emergency in all New York counties to brace for the storm, the National Weather Hurricane Center's warning of a "life-threatening storm surge" with potential for massive flooding, and then-Mayor Michael Bloomberg's evacuation order of the Rockaway Peninsula, the residents said.

"Nevertheless, LIPA did not shut down power to the area, even though Consolidated Edison – the utility supplying most of the electricity to the five boroughs of New York City – preemptively did so in its service area in order to avoid salt water from the surge coming into contact with its electrical systems," the lawsuit alleged.

And residents say that's exactly what happened when Hurricane Sandy flooded the Rockaway Peninsula, causing short-circuits and fires to rip through their homes in the storm's wake. The residents added to their lawsuit that LIPA then continued to keep its power on, despite being notified of downed live power lines.

LIPA argued its actions during the hurricane were "reasonable and appropriate." The public utilities authority moved to dismiss the lawsuits on the grounds of governmental immunity. LIPA, on behalf of itself and National Grid, claimed the utilities acted within "governmental capacity" during the storm and, even if they hadn't, that plaintiffs didn't pinpoint failure their to perform any specific duty that would have prevented the fires.

But the state Supreme Court dismissed all three requests. Judges maintained that LIPA was not entitled to governmental immunity on the grounds that providing electricity, including in response to a hurricane, is a proprietary - not governmental - function of the utility.

Because the utilities failed to prove their action to keep the power on during the storm was governmental, the judges "cannot say that the complaints fail to state causes of action as a mater of law. We therefore affirm," the opinion read.

Lead photo by Mark Lennihan/Associated Press

Caption: Storm-damaged beachfront houses in the Far Rockaways nearly three months after the area was hit by Hurricane Sandy in 2012.