PSC hearing in New York

2000The court concludes that the determinations must be vacated and annulled, and remitted to the respondent PSC for purposes of making detailed findings with regard to rule 595.4 (c) (2) (see, Matter of Furch v Bucci, 245 AD2d 749, 751-752 [3d Dept 1997], lv dismissed 91 NY2d 953 ). 6 Accordingly it is ordered and adjudged that the petition is dismissed as it relates to petitioner’s first and second causes of action, and that portion of petitioner’s third cause of action other than which pertains to allegations of noncompliance with PSC rule 595.4 (c) (2); and it is further ordered and adjudged t

1996A desk book submitted in the PSC’s brief, published by Mobil Natural Gas Inc. defining the term, was not before Supreme Court and may not properly be considered on this appeal (see, Ughetta v Barile, 210 AD2d 562, 564 , lv denied 85 NY2d 805 ; Campbell v Finke, 187 AD2d 780 ).

1996A desk book submitted in the PSC’s brief, published by Mobil Natural Gas Inc. defining the term, was not before Supreme Court and may not properly be considered on this appeal (see, Ughetta v Barile, 210 AD2d 562, 564 , lv denied 85 NY2d 805 ; Campbell v Finke, 187 AD2d 780 ).

1988Parenthetically, we note that PSC’s challenge to petitioner’s standing to advance this argument has considerable merit but was not raised in the first instance and hence was waived (see, Matter of Fosella v Dinkins, 66 NY2d 162, 167 ).

1984Relying upon Smyth v Ames ( 169 US 466 ), petitioner contends that a utility can only recover its investments in property which is used and useful to its customers.

1983However, the court granted the PSC’s motion to dismiss only to the extent of dismissing the damage claim without prejudice, but granted respondent leave to renew the cause in the Court of Claims.* ** 5 Special Term declared that Con Ed’s acts constituted “State action” for due process purposes, relying on Bronson v Consolidated Edison Co. of N. Y. ( 350 F Supp 443 ) for the dictum that Con Ed furnishes power as an agent of the State of New York.

1983As he points out in his opinion, “stricter scrutiny of State involvement will be applied in a case involving racial discrimination in housing like Shelley v Kraemer ( 334 US 1 ), cited by Special Term, than in cases only involving property rights.” There, the Supreme Court held that a private agreement to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes did not run counter to the Fourteenth Amendment.

1981Clearly, retroactive judicial expansion of the narrow and precise statutory language at issue should be avoided under these circumstances (State of New York v Mobil Oil Corp., 38 NY2d 460 ), and, therefore, neither the oral directive of the PSC employee nor the published rule of the PSC providing that a formal order is not always necessary in a billing dispute (16 NYCRR 11.2 [d]) is sufficient to constitute an order of the PSC the violation of which would subject defendant to a fine under section 89-k.

1973In the opinion of this court, the above procedures provide for a “ regularized, orderly process of dispute settlement ” prior to termination and comply with the requirements of due process (Boddie v. Connecticut, 401 U. S. 371, 375 ; see, also, Palmer v. Columbus Gas of Ohio, 479 F. 2d 153, 167-169 , supra; Lamb v. Hamblin, 57 F. R.

1973In the opinion of this court, the above procedures provide for a “ regularized, orderly process of dispute settlement ” prior to termination and comply with the requirements of due process (Boddie v. Connecticut, 401 U. S. 371, 375 ; see, also, Palmer v. Columbus Gas of Ohio, 479 F. 2d 153, 167-169 , supra; Lamb v. Hamblin, 57 F. R.