New York State Utility News An update of recent utility cases and news Vol. 6 Editor’s Note: This edition of Wilder & Linneball’s New York State Utility News marks its sixth year of publication. We have divided discussions into three sections: (1) Legislation; (2) Case Law; and (3) Utility News. The Case Law Section remains the most extensive area. We are pleased to include discussions regarding some of our firm’s successes for its clients (pages 2, 3 and 6). We are also honored to report recent industry recognition for our founding partners by Dig Safely New York, Inc. and the Edison Electric Institute (pages 10 and 11, respectively). If you have questions regarding an area of law that you do not see discussed or if you have suggestions for topics of future newsletters, please contact us. INDEX 1.0 2.0 2.1 2.1.1

Legislative Update .......................... 1 Recent Case Law ........................... 2 Summary Judgment ....................... 2 Evidence Required Instead of Mere Speculation ..................................... 3 2.1.2 Procedure Is Important on Motions for Summary Judgment........................ 4 2.2 Discovery and Sanctions ................ 5 2.3 Slip and Fall Cases – Inspections .. 6 2.4 Labor Law....................................... 7 2.5 Environmental Insurance Coverage 8 2.6 Employment Discrimination ............ 8 2.7 Tax Certiorari .................................. 9 3.0 Recent Media News ..................... 10

Summer/Fall 2010 No. 1 1.0

LEGISLATIVE UPDATE

Even though Albany is notorious for its fiercely partisan climate, bills occasionally become laws. The following are a few items of interest that have emerged from the legislature in recent months. First, on September 17, 2010, Governor Patterson signed into law a measure amending § 5-1705 of the General Obligations Law, relating to the procedure for obtaining court approval of the transfer of structured settlements. In a structured settlement, the recipient of the settlement (the civil plaintiff) does not receive all of the settlement funds at once. Rather, all or a portion of the settlement is paid out in scheduled payments made over a period of time. Where a structured settlement agreement does not restrict the recipient from transferring the right to future payments, an active market has developed whereby these rights can be bought and sold. Here, the recipient is typically charged a high discount rate in exchange for an immediate cash payment. An arrangement to transfer a recipient’s rights under a structured settlement must be approved by the court. Under the new law (S.3681), a petition for approval of a transfer must include a statement setting forth whether there have been any previous transfers or applications for transfers of the structured settlement. The goal of the new law is to deter the practice of filing a petition seeking a transfer in one venue after it has already been denied in a different venue.

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A second law (A.1558-C), signed by the Governor in August, establishes certain consumer safeguards in the marketing and offering of contracts for energy services to residential and small-business customers. Under § 349-d of the General Business Law, an Energy Service Company (“ESCO”) is defined as “an entity eligible to sell energy services to end-use customers using the transmission or distribution system of a utility.” Under the new law, a representative from an ESCO attempting to make door-to-door sales must: (a) properly identify himself or herself and the ESCO that he or she represents; (b) explain that he or she does not represent a distribution utility; (c) explain the purpose of the solicitation; (d) provide each prospective customer with a statement of an ESCO “consumer’s bill of rights” developed by the Public Service Commission; and (e) provide contracts and other written materials in the same language used to solicit customers. Finally, on August 3rd, the State Senate overwhelmingly approved a bill (S.7592-A) to impose a moratorium on the practice of hydraulic fracturing, which is a method used by gas companies when drilling for natural gas. If passed by the Assembly and signed by the Governor, the bill would officially prohibit companies from using the hydraulic fracturing method until 120 days after the Environmental Protection Agency and the New York Department of Environmental Conservation have completed their studies and issued reports on the method’s likely environmental impact. As of this writing, the Assembly has yet to hold a vote on the bill, but is expected to take up the measure sometime this Fall. 2.0

RECENT CASE LAW

We have selected several cases from the hundreds we review. We hope you find the cases interesting and helpful. For this edition of our Newsletter, we have emphasized some summary judgment cases.

New York State Utility News Summer/Fall 2010 Page 2 2.1

SUMMARY JUDGMENT

If successful, a motion for summary judgment can be the best trial you never had. Even when limited relief is gained, it can narrow issues and force some expert disclosure by plaintiffs. But no summary judgment is more welcome than in a wrongful death case, thereby avoiding a trial where sympathy could be a key factor. Herkey v. New York State Electric & Gas Co., et al., New York State Supreme Court, Erie County, May 28, 2010 •

Legal Principle: A defendant will only be found to owe a duty of care to the "reasonably foreseeable" plaintiff.

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Legal Principle: Where an intoxicated plaintiff engages in reckless conduct, such conduct is a "superceding cause" of plaintiff’s injury and will absolve the defendant of liability.

New York State Electric & Gas Company ("NYSEG") won summary judgment in a wrongful death action on May 28, 2010. Wilder & Linneball, LLP represented NYSEG. The claim arose when the decedent, Mr. Herkey, started his walk home at 4 a.m. after a night of heavy drinking at a neighborhood bar. Shortly after leaving the bar, Mr. Herkey sat down in the middle of the road. He was later run over and killed by a car. An autopsy indicated that he was highly intoxicated. Mr. Herkey’s estate (his wife and two children) sued the driver, the municipality and NYSEG, alleging that the utility failed to repair a burned out streetlight. Plaintiff also alleged the driver of the car was unable to see Mr. Herkey lying in the road. In order to bring a successful negligence suit, a plaintiff must prove that the defendant: 1) owed a duty of care to the injured party; 2) that the defendant breached this duty; and 3) that defendant’s breach caused the harm for which plaintiff seeks to recover money damages. In its

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Motion for Summary Judgment, Wilder & Linneball, on behalf of NYSEG, successfully attacked both the duty and causation elements of the plaintiff’s claim. NYSEG successfully argued that it did not owe a duty of care to Mr. Herkey under its tariff or the common law. A duty is owed only to a plaintiff whose injury is reasonably foreseeable by the defendant. It was not reasonably foreseeable that Mr. Herkey would sit down and later lay down in the middle of the road. NYSEG also attacked the duty element by arguing that utilities owe a duty to pedestrians to maintain streetlights only where illumination is necessary to avoid previously known dangerous and potentially hazardous conditions. New York courts have held such conditions go beyond those regularly present on roads at night, i.e., generally there is no duty to light the night. In attacking the causation element of plaintiff’s claim, NYSEG successfully argued that the burned out streetlight was not the proximate cause of Mr. Herkey’s death. Rather, his own reckless behavior was a superceding cause sufficient to relieve NYSEG of liability. 2.1.1 EVIDENCE REQUIRED INSTEAD OF MERE SPECULATION Courtright v. Orange & Rockland Utilities, Inc., 76 A.D.3d 501 (2d Dept., August 3, 2010) Katulak v. Orange & Rockland Utilities, Inc., 76 A.D.3d 510 (2d Dept., August 3, 2010) •

Legal Principle: Evidence of a defendant’s presence near the site of an accident, by itself, does not raise a material question of fact in opposition to defendant’s evidence that it did not act negligently.

Wilder & Linneball, LLP represented Orange & Rockland Utilities, Inc. ("O&R") in two companion lawsuits, which arose out of an automobile collision that was caused by a missing stop sign. The plaintiffs also sued

New York State Utility News Summer/Fall 2010 Page 3 Orange County, the local township and the driver of each car. The plaintiffs alleged that O&R had been engaged in an excavation project near the intersection at issue a month before the accident. Plaintiffs also alleged O&R was conducting overhead electrical work in the nearby vicinity on the morning of the accident. Plaintiff claimed O&R had removed the stop sign during the course of its work, and was negligent in failing to replace the stop sign. After the completion of discovery, all defendants moved for summary judgment on the issue of liability. The Trial Court granted the motions of the County and other defendants. The Court denied O&R’s motion on the sole basis that O&R bucket trucks and employees were allegedly seen near the accident site on the morning of the accident. O&R appealed the Trial Court’s denial of its motion. Citing Second Department precedent, O&R argued that to allege negligence based on the defendant’s mere presence is pure speculation. Plaintiffs’ failure to present any evidence that O&R actually removed the stop sign entitled O&R to summary judgment. The Appellate Division agreed with O&R, reversed the Trial Court, and dismissed both cases.

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New York State Utility News Summer/Fall 2010 Page 4 and return the transcript within 60 days, it may be used by the opposing party as though it has been signed.

Kurtishi v. Central Hudson Gas & Electric, 74 A.D.3d 1153 (2d Dept., June 22, 2010) •

Legal Principle: Mere speculation as to how an incident occurred is insufficient to raise a triable issue of fact sufficient to defeat a Motion for Summary Judgment, when faced with contrary evidence.

Plaintiff sued Central Hudson Gas & Electric ("Central Hudson"), among others, to recover damages for injuries sustained when she allegedly received an electric shock from power lines that had been downed by a falling tree. After the completion of discovery, Central Hudson moved for summary judgment on the issue of liability. The Trial Court granted Central Hudson’s motion for summary judgment, and the appellate division affirmed. The Courts held that Central Hudson had established its entitlement to summary judgment as a matter of law. Central Hudson submitted proof that the plaintiff was located at such a distance from where the wires were downed that any electric conductivity in the wires would not have affected her. The Court also found that the plaintiff’s speculation as to how she may have been shocked was insufficient to raise a triable issue of fact. But see Kraker v. Consolidated Edison, 73 A.D.3d 986 (2d Dept. 2010)(A question of fact exists as to whether Con Edison exercised due care in insulating and grounding wires). 2.1.2 PROCEDURE IS IMPORTANT ON MOTIONS FOR SUMMARY JUDGMENT Rosa v. Consolidated Edison, 27 Misc.3d 1234(A), Supreme Court, New York County (May 3, 2010) •

Legal Principle: Following a deposition, the deposition transcript must be submitted to the witness so that he or she can make any desired changes to his or her testimony. If the witness fails to sign

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Legal Principle: A party that fails to send the deposition transcript to its own witness for correction and signing may be precluded from affirmatively using the unexecuted transcript to support its claims or defenses.

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Legal Principle: A Motion to Renew based on newly discovered evidence is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. The granting of such a motion is very rare, and will be granted where such treatment is warranted as a matter of judicial policy, only where the movant presents a reasonable excuse for failing to provide the evidence in the first instance.

In support of its motion for summary judgment, the City of New York relied on statements contained in the deposition transcript of one of its own witnesses. The deposition transcript had not been reviewed or signed by the witness. The Judge denied the City’s motion, holding that the City could not use the transcript to support its motion without proof that it had actually sent the transcript to the witness to review and sign, as required under New York law. In response, the City made a motion for leave to reargue and/or renew its original motion for summary judgment. The City took the position that in denying its motion, the Judge overlooked authority for the proposition that "unexecuted transcripts, if certified as accurate [by the stenographer], are admissible as if signed." The Judge denied the City’s Motion to Reargue, holding that it is improper practice for a party that is required to execute a deposition transcript, to submit the unsigned transcript. The

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Judge then denied the City’s Motion to Renew, holding that the City did not present a sufficient justification on which to base its motion. Loughlin v. Keyspan Energy, Inc., 74 A.D.3d 757 (2d Dept, June 1, 2010) •

New York State Utility News Summer/Fall 2010 Page 5 work permits, and photographs established that it had not performed construction or work at the accident site. Finally, the Court held that Rainbow Bakery and the plaintiff failed to identify a triable issue of fact sufficient to defeat Keyspan’s motion.

Legal Principle: When a party has asserted cross-claims against a co-defendant and then fails to oppose the co-defendant’s motion to dismiss, the party will be found to have defaulted and its cross-claims will be dismissed..

After a trip and fall accident that occurred on a broken section of a New York City sidewalk, the injured pedestrian sued the City, Keyspan Energy, Inc. ("Keyspan") as the contractor responsible for maintaining and repairing the sidewalk, and Rainbow Bakery, as the owner of the real property abutting the sidewalk. The defendants served answers and asserted the customary cross-claims against each other. After discovery was completed, the defendants moved for summary judgment against all claims and cross-clams. Rainbow Bakery did not oppose Keyspan’s motion regarding the cross-claims. The Trial Court granted the City’s motion, letting it out of the case. The Court denied the motions made by Keyspan and Rainbow Bakery. The plaintiff then agreed to discontinue the case against Keyspan, but not against Rainbow Bakery. Therefore, the cross-claims asserted by Rainbow Bakery against Keyspan remained extant. Keyspan appealed the Trial Court’s denial of its motion to dismiss with respect to the cross-claims. The Appellate Court found that Keyspan’s motion should have been granted in its entirety, and reversed the Trial Court. The Appellate Court held that Rainbow Bakery defaulted by failing to submit papers in opposition to the motion to dismiss the cross-claims. The Court also held that Keyspan’s submission of deposition testimony,

2.2

DISCOVERY AND SANCTIONS

HSBC Bank, U.S.A. v. JP Morgan Chase Bank, N.A., Supreme Court, Erie County, 2008 •

Legal Principle: The failure of a party to timely respond to discovery demands may result in a finding that the party has waived its available objections to those demands, or in some cases, a Court Order precluding the party from offering evidence to support its claims or defenses at trial.

Although not a utility case, this commercial dispute illustrates the danger of untimely objections to discovery demands. Wilder & Linneball, LLP represented HSBC Bank as a plaintiff in this commercial litigation, arising out of a check-kiting scheme perpetrated by a private law firm through the use of its accounts with JP Morgan Chase Bank. HSBC

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sued to recover over $400,000 from JP Morgan Chase. HSBC credited its own customer’s account for deposits that were drawn on JP Morgan Chase, and for which the defendant bank later denied payment. At issue in the case is whether JP Morgan Chase followed the appropriate procedures for both returning the checks, and providing proper notice of non-payment to HSBC, as required under applicable law. During the discovery phase of the litigation, HSBC served JP Morgan Chase with a set of interrogatories requesting that it provide factual support for the defenses raised in its answer. JP Morgan Chase failed to timely raise objections or serve a response to the discovery demands. After sending several good-faith letters, HSBC made a motion to compel, asking the Court to order JP Morgan Chase to respond to the interrogatories, or risk being precluded from offering favorable evidence at trial. The Court adopted HSBC’s arguments in the Motion that: a) HSBC was entitled to prompt discovery responses under the New York Civil Practice Law and Rules; b) that the information sought in the interrogatories was material and necessary to the pursuit of HSBC’s remedy; and c) that such information was not readily available from other sources. HSBC argued further that by failing to timely respond to the interrogatories, JP Morgan Chase had effectively waived all available objections to the same, except in the case of privileged documents and interrogatories that are "palpably improper." The Court agreed with the arguments put forth by Wilder & Linneball in HSBC’s motion, and granted substantially all of the relief requested. 2.3

"SLIP & FALL" CASES – INSPECTIONS

Bliss v. Consolidated Edison, 28 Misc.3d 1215(A) (Supreme Court, New York County, June 1, 2010)

New York State Utility News Summer/Fall 2010 Page 6 •

Legal Principle: A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party. However, exceptions are made where the contracting party "launches" a force or instrument of harm; where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.

•

Legal Principle: A contractual indemnification clause is generally not enforceable where it seeks to indemnify a party for its own negligence.

Injured plaintiff sued the City of New York, Con Edison, and its sub-contractor, Manetta Industries, Inc. ("Manetta"). Plaintiff slipped and fell on black ice while walking across a city street. Con Edison owned a manhole cover near the accident site. Con Edison had previously contracted with Manetta to replace the casting around the manhole, a project which necessarily involved excavation and trenching work. The contract required Manetta to procure liability insurance and indemnify Con Edison in the event that a claim arose. In his complaint, plaintiff claimed that the black ice resulted from a depression in the road where water had collected, allegedly caused by Manetta’s failure to properly replace the concrete and asphalt after completing its project. Plaintiff sought to hold Con Edison liable as the owner of the manhole cover. Accordingly, Con Edison asserted a cross-claim against Manetta on the issue of indemnification. In its motion to dismiss, Manetta argued that it could not be held liable for plaintiff’s injuries because, as a party contracting with Con Edison, it did not owe any duty to third parties. Manetta argued further that Con Edison was not entitled to indemnification because it inspected and approved the work without notifying Manetta of any defect.

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The Court held that there are exceptions to the rule that a contracting party does not owe a duty to third parties, such as where a contracting party fails to exercise reasonable care in the performance of its duties, and as a result launches a force or instrument of harm. The Court denied Manetta’s motion, holding that there was a question of fact as to whether Manetta’s actions came within this exception. The Court also held that Manetta had not shown that it was not obligated to indemnify Con Edison and procure insurance. Hurly v. Related Management Co., et al., 74 A.D.3d 648 (1st Dept., June 22, 2010) •

Legal Principle: When a utility is responsible for maintaining its facilities or other property, it must conduct a thorough and well-documented inspection when it is given notice that a facility may present a public health hazard.

Pedestrian brought an action against property owners and Con Edison for injuries sustained in an alleged slip and fall on a sidewalk grate. The Trial Court denied the motions for summary judgment made by both the property owners and Con Edison. With regard to the denial of the property owner’s motion, the issue on appeal was whether a sidewalk metal grating was part of the "sidewalk" for purposes of New York City’s Administrative Code Section 7-210, which required owners of real property to maintain abutting sidewalks in a reasonably safe condition. In reversing the Trial Court and granting the property owner’s motion, the Appellate Court determined that a separate New York City administrative regulation, New York City Department of Transportation Highway Rule 34 (RCNY § 2-07), governs the maintenance and repair of sidewalk grates, and places the

New York State Utility News Summer/Fall 2010 Page 7 responsibility for maintenance and repair on the actual owners of the grates themselves. With regard to the denial of Con Edison’s motion, the issue was whether Con Edison had established that it conducted an inspection of the grates sufficient to satisfy its duty of care. The Appellate Court upheld the Trial Court’s denial of Con Edison’s motion. The Court held that there was no evidence that the inspection conducted by Con Edison included checking the grate to determine whether it became slippery upon becoming wet, despite the utility being notified of the slippery conditions before the accident. 2.4

LABOR LAW

Alers v. Verizon New York, Inc., 28 Misc.3d 1222(A) (Supreme Court, Richmond County, June 29, 2010) •

Legal Principle: Labor Law § 240(1) imposes a nondelegable duty on owners and contractors to provide or cause to be furnished safety devices for workers on elevated work sites.

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Legal Principle: In order to establish a violation of Labor Law § 240(1), a plaintiff must demonstrate that the statute was violated and that this violation was a proximate cause of his or her injuries.

Plaintiff was employed by a contractor retained by Time Warner Cable, Inc. ("Time Warner") to install cable television service to a residence on Staten Island. Plaintiff commenced this action against several defendants to recover damages for injuries sustained when he fell from his ladder while connecting a cable line to a Con Edison utility pole. Plaintiff sought to hold the defendants liable for, among other things, failing to provide adequate safety devices and proper equipment in violation of New York Labor Law § 240(1). Both defendants moved for summary judgment.

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With regard to Con Edison’s motion, the Court held that plaintiff’s Labor Law claims must be dismissed because: 1) Con Edison was not the owner of the cable attachments, lines and terminal boxes being altered; 2) Con Edison had no knowledge that plaintiff would be working on the subject utility pole on the day in question and, in any event, had no authority to supervise and control the manner in which the work was performed; and 3) because the utility pole itself was not in a dangerous or defective condition. With regard to Time Warner’s motion, the Court explained that Labor Law § 240(1) imposed a nondelegable duty on owners and contractors to provide or cause to be furnished certain safety devices for workers on elevated work sites. The Court reasoned that to establish a violation of Labor Law § 240(1), a plaintiff must demonstrate that the statute was violated and that this violation was a proximate cause of the injuries. The Court granted Time Warner’s motion, holding that it was the plaintiff himself that was the proximate cause of his injuries. The plaintiff knew that the pole was higher than usual and decided to perform the work anyway instead of calling Time Warner and asking it to send a bucket truck, as was the standard procedure. 2.5

New York State Utility News Summer/Fall 2010 Page 8 This action was brought to determine the scope of coverage under an environmental pollution insurance policy issued to Orange & Rockland Utilities, Inc. ("O&R"). The Trial Court held that O&R did not have sufficient notice of the discharge of pollutants on its property to trigger its obligation to notify its insurance carrier. The Trial Court was reversed on appeal. The Appellate Court held that O&R’s notice requirement was triggered due to its ongoing contacts with environmental regulators, including site inspections by the EPA. The questions raised by these contacts with regulators were sufficient notice to O&R that its pollution insurance policy might be implicated. The Appellate Court held further that O&R failed to adequately investigate potential discharges occurring at the site, and that such willful failure negates any lack of awareness of an occurrence of pollution. 2.6

EMPLOYMENT DISCRIMINATION

Cohn v. Keyspan Corp., et al., 2010 WL 1993886 (E.D.N.Y. May 13, 2010) •

Legal Principle: Individuals may not be sued in their individual or personal capacity under the Americans with Disabilities Act.

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Legal Principle: There is no cause of action under the Americans with Disabilities Act for money damages against a supervisor in his or her "official" or "representative" capacity.

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Legal Principle: A plaintiff must exhaust all administrative remedies before filing an action in federal court under the Americans with Disabilities Act.

ENVIRONMENTAL INSURANCE COVERAGE

Traveler’s Indemnity Co. v. Orange & Rockland Utilities, Inc., 73 A.D.3d 576 (1st Dept., May 20, 2010) •

•

Legal Principle: Under a primary liability insurance policy, an insured is required to promptly notify its carrier when it becomes aware of a reasonable possibility that the policy will be implicated. Legal Principle: Willful failure to investigate a potential occurrence of pollution will negate an insured’s argument that it lacked awareness of the occurrence.

Plaintiff, who was employed by Keyspan as a customer service representative, brought an action against her employers and supervisors. Plaintiff alleged discrimination based on disability, a hostile work environment,

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and retaliation in violation of the Americans with Disabilities Act (“ADA”). The Court dismissed plaintiff’s ADA claims against her supervisors. The Court held that the ADA does not provide for a cause of action against an individual in his or her personal capacity, or in an "official" or "representative" capacity as a supervisor. While the Court held that the ADA did not provide plaintiff with the relief requested, it also found that the allegations against plaintiff’s supervisors were sufficient to state a claim under New York State Human Rights Law. For more on recent case law in the employment law context, see Barney v. Consolidated Edison, 2010 WL 3511490 (2nd Cir. 2010)(Plaintiff unable to carry her burden of establishing the elements of a prima facie retaliation claim). TAX CERTIORARI

2.7

Central Hudson Gas & Electric v. Assessor of the Town of Newburgh, 73 A.D.3d 1046 (2d Dept., May 18, 2010) •

Legal Principle: While a locality’s tax assessment is presumptively valid, it may be overcome by a petitioner’s submission of substantial evidence demonstrating overvaluation.

New York State Utility News Summer/Fall 2010 Page 9 Central Hudson sought a review of the Town’s assessment of taxes on certain real property consisting of gas and electric transmission lines, three substations, and a switching station. Central Hudson argued that the Town’s assessments of its properties were illegal, unequal and unconstitutional, resulting in the overvaluation of its properties. At trial, the Court found that Central Hudson’s properties were overvalued. The Court directed that the assessment rolls be amended in accordance with the fair market value that the Court calculated, based on the evidence presented by the parties. The Town appealed, and the Appellate Court reversed. The Appellate Court held that the Trial Court erred in separating out the cost of acquiring the easements possessed in the land when doing its appraisal. The Court explained that the easements are not subject to tax as real property. However, a fair and realistic appraisal based on "reproduction cost less depreciation" (which was the method of appraisal agreed upon by the parties), must include the cost of acquiring the easements. The Court held these costs are undeniably necessary to the re-creation of functioning transmission lines. 3.0 3.1

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Legal Principle: Substantial evidence will most often consist of a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser. Legal Principle: Easements are not considered to be within the definition of "real property," under the Real Property Tax Law, and therefore they are not separately assessable for tax purposes.

Central Hudson Gas & Electric ("Central Hudson") commenced a proceeding under Article 7 of the New York Real Property Tax Law.

RECENT MEDIA NEWS

Department of Public Service reported positive results in damage prevention to underground facilities

On June 17, 2010, the Department of Public Service ("DPS") presented its 2009 Gas Safety Performance Measures Report to the New York State Public Service Commission. This report examined natural gas companies’ performance in the three areas pertaining to safety-damage prevention, emergency response and leak management. The DPS's analysis found that the rate of total damages statewide improved over 12 percent from 2008 and 62 percent since 2003.

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"Overall, gas distribution companies’ performance in 2009 not only improved over 2008, but also have shown continued and steady improvement since 2003," said Public Service Commission Chairman Garry Brown. "These companies - which supply natural gas to millions of homes and businesses across New York State - deserve credit for ensuring necessary safeguards are in place to protect customers." The DPS attributed the positive results in damage prevention in part to public education efforts undertaken by both local gas companies and the One-Call Centers accessible to contractors, excavators or homeowners by dialing 811 before any excavation or digging. 3.2

New York State Utility News Summer/Fall 2010 Page 10

3.3

Wilder & Linneball Founding Partner Gives Presentation at Edison Electric Institute’s 2010 Conference in Palm Beach, Florida

On September 20, 2010, Wilder & Linneball, LLP founding partner J. Joseph Wilder gave a presentation at the Edison Electric Institute’s Claims Committee annual conference in Palm Beach, Florida. The presentation, entitled "Spoliation: Appetizers and Entrees for Your Evidence Locker," emphasized the importance of preserving evidence for lawsuits, and provided a national overview of the law of spoliation. Issues regarding E-discovery and sanctions were also discussed.

Wilder & Linneball Partners Receive President’s Award from Dig Safely New York

Wilder & Linneball, LLP founding partners Laura A. Linneball and J. Joseph Wilder each received the President’s Award from Jon McKnight, President, Dig Safely New York, Inc. at the One-Call Center’s Annual Meeting on April 13, 2010. The President’s Awards were presented in front of more than 400 members of Dig Safely New York. President McKnight gave these awards "in recognition of outstanding professional legal services, continued strong commitment to damage prevention of underground facilities and for providing legal services for Dig Safely New York." Mr. Wilder and Ms. Linneball have over thirty years combined experience representing the not-for-profit corporation. They share enormous pride in these awards.

Jon McKnight and Laura Linneball

J. Joseph Wilder at Edison Electric Institute

3.4

Con Edison Partners with NYC Cool Roofs to Promote Energy Conservation, Curb Global Warming, and Lower Urban Air Temperatures

Con Edison has partnered with NYC Cool Roofs, a program started by New York City Mayor Michael Bloomberg. Con Edison employees, along with players from the New York Mets, joined the Cool Roofs mission by spreading a reflective white coating on two YMCA buildings in Brooklyn’s Bedford Stuyvesant neighborhood. The coating is designed to reflect sunlight (unlike the black tar roofs that absorb the heat from the sun) and naturally keep the buildings cooler during the Summer. Con Edison has already installed 250,000 square feet of white roofing membranes on its own buildings and has plans to install

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New York State Utility News Summer/Fall 2010 Page 11

another 156,000 square feet of the coating by the end of 2010.

generate more electricity than the conventional photovoltaic system under all lighting conditions.

3.5

3.7

Public Service Commission Approves NYSEG’s Proposed Rate Increases

The New York State Public Service Commission has approved a proposal by NYSEG to increase its electricity delivery charges by 11 percent over three years. Electric utility charges will increase for NYSEG customers by 2.5 percent for September, followed by a 4.2 percent increase next year and a 4.3 percent increase in 2012. The new rate plan, which took effect on September 25th, will generate $73.5 million in additional revenue for NYSEG, and includes a "revenue decoupling mechanism" that eliminates incentives for the company to discourage energy conservation by its customers. The rate increase will also provide NYSEG with adequate revenues to invest in improvements to its electricity delivery infrastructure, while at the same time strengthening its tree-trimming and vegetation management programs and expanding the budgets for programs to aid low-income customers. 3.6

Central Hudson and Prism Solar Technologies Collaborate on New Solar Technology Research and Development Project

Central Hudson Gas & Electric Corporation is collaborating with Prism Solar Technologies on a three-year, $190,000 research and development project to test the effectiveness of solar panels using Prism Solar’s patented holographic film. The holographic film replaces most of the silicon cells required in a solar module, and results in a module that is about half the cost of a conventional one. Holographic modules are able to select the most useful wavelengths of light, and then concentrate these wavelengths onto solar cells. Researchers anticipate that the holographic systems will

National Grid Announces New Refrigerator/Freezer Recycling Program in Upstate New York

National Grid is offering its customers in upstate New York a way to save up to $150 a year in electrical costs through the utility’s new Second Refrigerator Freezer Recycling Turn-in program. At no charge, customers who have outdated and inefficient second refrigerators and freezers running in their garages or basements can now call National Grid to have the old units picked up and shipped to a new state-of-the-art recycling plant in East Syracuse, New York. 3.8

NYSEG and RG&E to Offer Rebates to Encourage Customers to Become More Energy Efficient

NYSEG and RG&E have launched a rebate program for nonresidential electricity and natural gas customers who install qualifying energy efficient equipment. The program includes two categories of rebates. "Prescriptive rebates" are available to all nonresidential NYSEG and RG&E electricity and/or natural gas customers for a broad range of energy efficient lighting and controls; and "custom rebates" are available to customers whose energy efficiency improvements require site-specific engineering and cost analysis. Custom rebates are available to all nonresidential natural gas customers and to electricity customers with a demand of 100 kilowatts or more. The rebates will be funded through the payment of a System Benefits Charge, which each nonresidential customer must pay through their utility bills in order to be eligible to participate in the program.

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