International Condominium Corp. v. New York Telephone Co. , 46 A.D.2d 719 ( 1974 )

Appeal from so much of an order of the Supreme Court at Special Term, entered February 11, 1974 in Albany County, as denied defendant’s motion to dismiss plaintiffs’ demand for a permanent injunction. As a result of the defendant’s attempts to collect plaintiffs’ overdue telephone bills and its eventual termination of telephone service, plaintiffs commenced an action for monetary damages and a permanent injunction to restrain the defendant from future interruptions of service except upon certain conditions which were at variance with defendant’s current practices. Defendant’s motion to dismiss the various causes of action alleged in the complaint was granted to the extent of its request except that its objection to the interposition of an action for an injunction was denied. Defendant now appeals from so much of Special Term’s order as denied its motion to dismiss the claim for an injunction. The order should be reversed and the motion granted, without prejudice. Plaintiffs’ requested injunction would, if granted, establish standards of collection practices and termination procedures different from those currently applied to all other similarly situated telephone users. Th,e basis for this claim clearly appears to stem from plaintiffs’ dissatisfaction with the reasonableness and justness of such present rules and regulations as fixed by tariff and order of the Public Service Commission. Since the Public Service Commission undeniably has the power and duty to regulate such matters (Public Service Law, §§ 94, 97) and since the expertise of the commission is necessary, at least in the first instance, to resolve such disputes and to promote uniformity, Special Term should have dismissed the instant claim for injunctive relief, without prejudice to any action or proceeding plaintiffs might institute after recourse to the administrative process is exhausted (cf. Matter of Leitner v. New York Tel. Co., 277 N. Y. 180, 189; Freedom Finmce Co. v. New York Tel. Co., 29 A D 2d 545; Margolis v. New York Tel. Co., 27 A D 2d 595). Order reversed, on the law, and motion granted, without costs. Herlihy, P. J., Staley, Jr., Sweeney, Kane and Main, JJ., concur.