Top court skeptical of LIPA immunity claim in fire lawsuit

ALBANY — Judges on New York’s top court voiced skepticism Tuesday about the Long Island Power Authority’s claim that it was entitled to immunity from responsibility for a fire that destroyed scores of homes on Breezy Point in Queens amid superstorm Sandy in 2012.

LIPA attorneys told the state Court of Appeals it and National Grid deserved “governmental immunity” because they were acting in a governmental capacity in running the grid in the face of a natural disaster and shouldn’t be subject to a homeowners’ lawsuit that blames LIPA for the blaze that leveled more than 100 homes. Breezy Point homeowners assert LIPA’s decision not to turn off power to the Rockaway peninsula led to salt water contacting live power lines, triggering the fire.

The seven-judge panel seemed cool to the suggestion that LIPA was functioning like a state agency when deciding to turn off or leave on parts of the power grid.

“Who’s authorized to make such a decision in LIPA? It’s not the government, is it? It’s not an elected official, is it?” Judge Jenny Rivera quizzed LIPA attorney David Lazer during oral arguments on the case.

Lazer contended that the decision was made in the context of protecting residents from the impending storm and that courts generally grant immunity for governmental decisions regarding preparations for natural disasters.

“You’re saying the nature of the emergency was the key factor, is that the point?” asked Judge Eugene Fahey. “So that would mean that every private entity that made a decision to protect the public would be entitled to some form of immunity.”

“Of course not,” Lazer answered. But in this case, LIPA was acting not unlike, say, the Metropolitan Transportation Authority in deciding whether or not to shut down train service amid a natural disaster.

“I’m not sure how I understand how this is anything but proprietary” rather than governmental in function, Rivera said.

Brian Shoot, one of the plaintiff attorneys, argued that in determining who gets immunity “it matters not just what the act was, but who the actor was.”

Homeowners have noted that LIPA cut power to Fire Island ahead of the storm and argued the same decision should have been made about Rockaway.

LIPA and National Grid so far has asked — unsuccessfully — for lower courts to dismiss the lawsuits based on legal grounds. If the Court of Appeals agrees with LIPA, the lawsuits would be finished. If it agrees with the homeowners, the lawsuit could proceed to a trial.