Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the motions of National Grid Electric Services, LLC, and Long Island Power Authority which were to dismiss the plaintiffs' cause of action for injunctive relief insofar as asserted against each of them, and substituting therefor a provision granting those branches of the motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On October 29, 2012, Hurricane Sandy devastated portions of the East Coast, including much of Long Island and the Rockaways. Among the consequences experienced by those in the storm's path were extended power outages. In this putative class action, the plaintiffs, individually and on behalf of others similarly situated, seek damages for breach of contract as well as injunctive relief from Long Island Power Authority (hereinafter LIPA) and its former management services provider, National Grid Electric Services, LLC (hereinafter Grid).
LIPA made a pre-answer motion, inter alia, pursuant to CPLR 3211 to dismiss the plaintiffs' class action allegations
In examining a complaint in response to a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), "[t]he allegations in the complaint, and in any supporting affidavit, must be taken as true, and the plaintiff must be accorded the benefit of every possible favorable inference'" (Cooney v Cooney, 13 A.D.3d 407, 409 [2004], quoting Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; see Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 178 [2011]). A complaint should be read liberally, for if it "`states, in some recognizable form, any cause of action known to our law,' it cannot be dismissed" (Cooney v Cooney, 13 AD3d at 409 [citation omitted]).
Those branches of the defendants' motions which were to dismiss or strike the class action allegations for failure to establish the statutory prerequisites for class certification (see CPLR 901 [a]) were properly denied by the Supreme Court as premature (see Ackerman v New York Hosp. Med. Ctr. of Queens, 127 A.D.3d 794, 796 [2015]; Bernstein v Kelso & Co., 231 A.D.2d 314, 323-324 [1997]).
However, the Supreme Court should have granted those branches of the defendants' motions which were to dismiss the cause of action for injunctive relief. "To sufficiently plead a cause of action for a permanent injunction, a plaintiff must allege that there was a violation of a right presently occurring, or threatened and imminent, that he or she has no adequate remedy at law, that serious and irreparable harm will result absent the injunction, and that the equities are balanced in his or her favor" (Caruso v Bumgarner, 120 A.D.3d 1174, 1175 [2014] [citation and internal quotation marks omitted]). "A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction" (Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 403, 408 [2009] [citation and internal quotation marks omitted]).
Turning first to Grid, because the service agreement between it and LIPA has expired and has not been renewed, and because the harm alleged by the plaintiffs is complete rather than ongoing, the plaintiffs cannot allege a "`violation of a right presently occurring, or threatened and imminent'" (Caruso v Bumgarner, 120 AD3d at 1175, quoting Elow v Svenningsen, 58 A.D.3d 674,
As to LIPA, the plaintiffs have adequately alleged a threat of serious and irreparable harm. However, the nature of the injunctive relief sought against LIPA raises questions of justiciability (see Jiggetts v Grinker, 75 N.Y.2d 411, 415 [1990]). Specifically, the plaintiffs seek an order directing LIPA to comply with the recommendations set forth in (1) the Interim and Final Reports issued by the Moreland Commission on Utility Storm Preparation and Response, which was appointed by Governor Andrew Cuomo to "study, examine, investigate, and review the response, preparation, and management of New York's power utility companies with respect to Hurricanes Irene and Sandy" as well as the "adequacy of regulatory oversight of the utilities," and (2) the reports of two prior investigations, one conducted at LIPA's request and the other in response to Hurricane Irene. Those reports recommended, among other things, substantial investment in the maintenance of LIPA's infrastructure, including the replacement and updating of its transmission and delivery and communications systems, as well as changes to the structure of LIPA's operations. Such recommendations plainly implicate "[b]road policy choices, which involve the ordering of priorities and the allocation of finite resources" which are reserved to the legislative and executive branches of government (Jiggetts v Grinker, 75 NY2d at 415; see e.g. Roberts v Health & Hosps. Corp., 87 A.D.3d 311, 325 [2011]). Accordingly, the Supreme Court should have granted that branch of LIPA's motion which was to dismiss the plaintiffs' cause of action for injunctive relief insofar as asserted against it on the ground that it presented questions that are nonjusticiable.
The branch of Grid's motion which was pursuant to CPLR 3211 (a) (1) to dismiss the second cause of action insofar as asserted against it on the ground that the plaintiffs are not third-party beneficiaries of the service agreement entered into between Grid and LIPA was properly denied. "A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fontanetta v John Doe 1, 73 A.D.3d 78, 83-84 [2010] [citations and internal quotation marks omitted]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 N.Y.3d 582, 590-591 [2005]). Here, the service agreement contains a boilerplate provision generally denying the parties' intent to
The defendants' remaining contentions are without merit.
