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Appeals court favors Sandy victims’ lawsuit

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The New York State Court of Appeals handed down a favorable decision for dozens of Rockaway residents and business owners on their lawsuit against the Long Island Power Authority and National Grid, LLC, according to lawyers representing the plaintiffs.

The Rockaway residents and business owners lived and worked in Breezy Point, Rockaway Park and Belle Harbor and faced widespread fires that destroyed their homes and places of work during Hurricane Sandy in October 2012. They blame LIPA and National Grid for not cutting off the electrical power to the peninsula before Sandy struck, although there were forecasts of a storm surge.

“When the Rockaway Peninsula flooded due to storm surges from Hurricane Sandy, flood water came into contact with components of [the electrical system] causing short circuits, fires and, ultimately, the destruction of...property,” according to the plaintiffs.

The Sandy victims will now be able to move forward with their suit, despite efforts from LIPA to block it, according to Eric Schwarz of SPBMC, the law firm representing over 40 families and business owners who are seeking claims for damages.

“Just like Hurricane Sandy ravaged the Rockaways, LIPA’s repeated attempts to block this case from moving forward has ravaged the families and businesses who simply want their day in court,” said Schwarz. “Today’s ruling is a step in the right direction for our clients and all those who are seeking some sort of closure on this issue so they can finally try to move on with their lives as best they can.”

According to the appeal from LIPA, the company is a public authority that was created by the state Legislature in 1986 as an alternative to the Long Island Lighting Company, which had a coverage area of Long Island and the Rockaway Peninsula.

LIPA claimed in the appeal that as a corporate municipal instrumental of the state exercising essential governmental and public powers that it has governmental function immunity.

Law.com states that the old English common law gives governmental bodies impunity from judgment and lawsuits.

“A government agency’s ability to make such decisions and to prioritize their response to emergencies should be free from tort liability,” according to Zachary Murdock, who is representing LIPA. “Purposely turning off power to an occupied area would have immediately knocked out the street lights, traffic lights, the power to people’s homes, to hospitals, nursing homes, elevators in high-rise buildings, and basement sump pumps, among other things.”

The plaintiffs, however, believe the actions of LIPA to be proprietary, according to the appeal. They are arguing that LIPA is a private enterprise.

After LIPA took over LILCO as a subsidiary, it entered into a Management Services Agreement with National Grid, which was also operating under the presumption that LIPA was entitled to governmental immunity.

The court may have rejected LIPA’s appeal, but the company maintains its stance as a public authority.

“LIPA, a New York State public authority that owns the electric transmission and distribution system for Long Island and the Rockaway Peninsula, asserted the defense of government function immunity which protects decisions and actions of governmental entities when they prepare for and respond to emergencies such as Superstorm Sandy,” said Murdock. “For these reasons, government function immunity should protect LIPA’s decision to not turn off power.”

Reach reporter Naeisha Rose by e-mail at nrose@cnglocal.com or by phone at (718) 260–4573.

Updated 6:14 am, February 28, 2018
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