Top court rejects LIPA immunity claim in superstorm Sandy fire

ALBANY — New York’s top court on Tuesday refused to dismiss lawsuits accusing the Long Island Power Authority of negligence regarding a fire that destroyed scores of homes on Breezy Point in Queens amid superstorm Sandy in 2012.

The Court of Appeals, in 6-0 ruling, rejected LIPA’s request to dismiss lawsuits filed by Breezy Point homeowners who claim LIPA erred by failing to shut off power to the peninsula before or soon after the storm struck. Homeowners have asserted that LIPA’s decision not to turn off power to the Rockaway peninsula led to salt water contacting live power lines, triggering the fire that leveled more than 100 homes.

LIPA had claimed it was entitled to governmental immunity because it essentially was acting for authorities in operating the electrical grid during a natural disaster.

The court rejected that argument.

“Indeed, LIPA does not dispute that the provision of electricity traditionally has been a private enterprise which, in the normal course of operations, would be a proprietary function,” Judge Leslie Stein wrote for the court.

“However, LIPA argues that its alleged decision to refrain from shutting down electrical power to, or failure to de-energize, the Rockaway Peninsula — the specific act or omission alleged in the amended complaints — was a governmental function under the circumstances here because it related more broadly to the protection of the public from a natural disaster,” she continued. “Given the procedural posture, we cannot say, as a matter of law . . . that LIPA was acting in a governmental rather than a proprietary capacity when engaged in the conduct claimed to have caused plaintiffs’ injuries.”

The outcome means the lawsuits can continue in a civil trial.

LIPA, through an attorney, defended its action during the storm.

“We believe the decision to keep power on to critical care facilities, first responders, and people’s homes was prudent and protected under our government immunity status and will continue to present our position in court,” Zachary Murdock, a partner at the law firm that represented LIPA at the court of appeals, said in an email.

A lawyer for some of the Breezy Point homeowners repeated the claim that LIPA’s actions led to the destruction of homes on the peninsula.

“If LIPA and National Grid acted responsibly in preparing for the storm my clients would be living in their homes with all of their life’s possessions and the communities would not have looked like war-zones after the storm passed through,” attorney Keith Sullivan said. “Industry protocol and common sense called for de-energizing the electric system. However, LIPA and National Grid chose to keep the dangerous electric flowing into the beachfront communities during the worst storm this area has ever seen without any oversight or monitoring of the lethal electricity.”

With Mark Harrington