Court: Supreme Court of New York, New York County

Long Island Lighting Company (LILCO) is a subsidiary of Long Island Power Authority (LIPA). LIPA was created “to remedy LILCO’s conduct as a private electric provider” by closing LILCO’s Shoreham Nuclear Power Station — where the plaintiff-decedent was allegedly exposed to asbestos — and saving LILCO customers money by reducing utility costs. 

LIPA and LILCO moved for summary judgment on that basis that the plaintiff failed to (1) bring their claims within the statute of limitations and (2) timely serve Notices of Claim pursuant to New York Public Authority & General Municipal Law.  The plaintiff contends that LILCO was a private entity during the plaintiff-decedent’s period of asbestos exposure, and therefore, the public authority notice requirements do not apply. In addition, the plaintiff points out the lack of authority for the retroactive application of the notice of claim requirement.

The court framed the issue as whether a private entity later acquired by a public authority should be entitled to the benefits of the statute of limitations and notice of claim requirements.  In considering the parties’ arguments, the court first noted that the defendants provided no relevant case law. Rather, they gave multiple irrelevant examples of notice requirements against public authorities.  However, LILCO is being sued in this matter as the private former operator of Shoreham Nuclear Power Station, and the question is whether LILCO was acting as a subsidiary of LIPA at the relevant time.

The court cited to Connolly v. Long Island Power Authority, where the Court of Appeals held that “governmental immunity does not apply to LIPA when it is functioning in a primarily proprietary manner, including when making power decisions.” Based on this holding, the court was unconvinced that LILCO should be entitled to the benefits of being associated with LIPA for “conduct that was entirely private and occurred prior to any relationship with a public authority.”  As questions of fact exist as to LILCO’s liability and whether it should be afforded the privilege of a shortened statute of limitations and notice of claim requirements, the defendants’ motion for summary judgment was denied.

Read the full decision here.