SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER

STEPHEN PHILLIP ROMINE                                )

PLAINTIFF,                                                        )

                                                                )         INDEX NO. 16-1351

                        VS.                                        )                

                                                                )        Assigned to:

JAMES P. LAURITO and STEVEN V. LANT                )               Hon. Christopher E. Cahill

DEFENDANTS                                                 )

________________________________________________________________________

MOTION TO REARGUE

SIRS:

  1. The Plaintiff STEPHEN PHILLP ROMINE, ("Plaintiff"), affirms, I am pro se, pro per, sui juris litigant, and as such, am familiar with the facts and circumstances surrounding this matter.
  2. The Plaintiff respectfully moves for leave of Court pursuant to CPLR 2221(d) with a Motion to Reargue regarding matters of misapprehended and overlooked facts and errors of law concerning Honorable presiding Judge Christopher E. Cahill's Decision granting Summary Judgment Motion (“SJM”) to the Defendants in Case#16-1351, so ordered on February 14, 2018 and postmarked February 16, 2018.

Overlooked and Misapprehended Facts and Misapplied Law

  1. Regarding of the Courts Statements in SJM  Decision on Page 2 states:

"The GE I-210 was approved by the New York State Public Service Commission ("PSC") in 2008.  The GE I-210 utility meter was installed in accordance with Central Hudson's procedures, the PSC's rules and regulations and the utility's Tariff. After the installation of the digital metro, the Plaintiff complained that the utility meter caused health hazards by emitting microwaves and possible carcinogens.  In early 2013 the Plaintiff sought to have Central Hudson remove the digital utility meter. The Plaintiff claims that the utility meter caused him to become ill and that his partner, Ms. Nicole Nevin, had suffered a mini-stroke ("TIA") on May 7, 2013, because of the meter…  Thereafter Central Hudson attempted to resolve this issue with the Plaintiff and informed him that his request for an analog utility meter could not be met as "such utility meters were no longer manufactured and Central Hudson does not stock any analog utility meters… The PSC determined the ERT utility meters being installed by Central Hudson meet the Commission's safety and accuracy standards":

  1. The Court overlooked the fact presented by the Plaintiff in his Opposition to Summary Judgment Motion ("OSJM") that Central Hudson under the leadership of the Defendants and their policies directing Company operations, pushed through the deployment of digital transmitting utility meters into its customer base without any public knowledge or participation, and yet the deployment got approved. (See Exhibits D, L, N.)
  2. Take Judicial Notice: The Court has apparently overlooked the fact in the Plaintiff’s OSJM of an official letter from the PSC obtained using the Freedom of Information Law (FOIL). The official PSC above-mentioned letter confirms that Central Hudson’s used analog utility meters that were taken off customer homes by Central Hudson (for one reason or another -- such as upgrades or new construction on the home) and that the utility meters removed and that tested “good”, can be used by Central Hudson customers who request these analog utility meters, as an option.  There is no PSC document, "Rule, Law or Tariff Stipulation" preventing Central Hudson from installing a used analog utility meter. (See Exhibit AE.)  Therefore, there was and is an availability of PSC approved analog utility meters for those customers who, for health reasons, need an analog utility meter.   That being said, there was certainly at least one tested “good”, used, analog utility meter available for the Plaintiff, over the years Central Hudson was operating under the leadership of the Defendants and their policies.
  3. Take Judicial Notice: The Court has apparently overlooked the fact that in the Plaintiff's OSJM there are three Companies nationwide that remanufacture original equipment (analog utility meters) and that are being used by utility companies in twelve states, including our neighboring states of Maine and Vermont. Two of the Companies mentioned in Exhibits below have been remanufacturing analog utility meters for 50 and 75 years respectively. (See Exhibits AD, AJ, AK.)
  4. Take Judicial Notice: The Court has apparently overlooked the fact in the Plaintiff’s OSJM these above-mentioned Companies that remanufacture analog utility meters can refurbish analog utility meters supplied by Central Hudson. (See Exhibits AD, AK.)
  5. Take Judicial Notice: The Court has apparently overlooked facts previously mentioned in Plaintiff’s OSJM, items 3(a) through 3(d), and in doing so, misapprehended the triable issue of material fact of Central Hudson, under the leadership of the Defendants and their policies, and thus have committed Fraud on the Plaintiff, and Fraud on the Public, claiming analog utility meters were not available when it is clear they were and are available. These analog utility meters were available when Plaintiff originally requested and demanded one.  It is being claimed that analog utility meters were not and are not available, when the facts provided in Point X of the Plaintiff’s OSJM and the facts in this document, prove otherwise.
  6. Take Judicial Notice: The Court has apparently overlooked the fact of a Notarized Affidavit signed by a world leading expert on microwave radiation exposure, Dr. David Carpenter, (who is also on my Expert Witness list) and who is a New York State Public Health Physician who serves as Director of the Institute of Health and Environmental Sciences, (a Collaborating Center for the World Health Organization), as well as Professor of Environmental Health Sciences at the University of Albany, School of Public Health. The Court overlooked that Dr. Carpenter's statements do not support the Defendants claim and the PSC's claim that the digital utility meters are biologically safe and that his statements do support the Plaintiff’s claims that digital utility meters are a biological hazard to the electrical consumer. (See Exhibits C, AB, and F.)
  7. Take Judicial Notice: The Court has apparently overlooked the facts presented in the Plaintiff’s OSJM  that demonstrate that digital utility meters emit dangerous and toxic radiation contrary to the claims of Central Hudson  under the leadership of the Defendants and their policies directing operations. The Court has overlooked the fact that the Plaintiff has provided this Court with facts from peer-reviewed, scientific studies, done by medical and health professionals.  The Defendants have provided no facts from, peer-reviewed, scientific studies done by medical and health professionals, in their submitted paperwork to this Court, once again, demonstrating Fraud.  (See Exhibits AG, AH, AH, C, F, G1, G2, G3, K, K2.)
  8. Take Judicial Notice: The Court has apparently overlooked the fact presented by the Plaintiff in his OSJM that the PSC relies on the Federal Communications Commission (“FCC”) to approve the safety of digital utility meters and that the Environmental Protection Agency (“EPA”) has stated the "Federal Communications Commission (FCC) exposure guidelines is considered protective of effects arising from a thermal mechanism but not from all possible mechanisms. The generalization by many that the guidelines protect humans from harm by any or all mechanisms is not justified“.  (See Exhibit I.)  The Court also overlooked the fact that the so-called approving regulatory entity of digital utility meters (the FCC) is an agency "captured" by industry and not to be trusted as the final word. (See Exhibit AI.)
  9. Take Judicial Notice: The Court has overlooked the facts previously mentioned in items 3(f) and 3(g) and in Plaintiff’s OSJM, Point X, and has apparently misapprehended the triable issue of material facts that demonstrate that the Central Hudson, under the leadership of the Defendants and their policies and in collusion with the PSC, have committed Fraud and Gross Negligence by claiming digital utility meters are safe.  The Court overlooked that the Defendants have supplied no scientific, peer-reviewed studies done by medical and health professionals, demonstrating that digital utility meters are biologically safe. The Defendants fraudulently claim there are “ample studies", conveniently omitting "done by medical and health professionals that prove biological safety”.
  10. Take Judicial Notice: The Court has overlooked the facts in items 3(a) through 3(h) of this document, (also located in the Plaintiff’s OSJM) and has misapprehended this triable issue of  material fact that digital utility meters are a biological hazard and that time tested, safe analog utility meters were available at the time the Plaintiff requested and demanded an analog utility meter, as demonstrated by the Courts statements on Pages 1 and 2 of this Courts SJM Decision that portray the Courts apparent misapprehension. (See Exhibits AE, AJ, AK.)
  1. Regarding the Courts Statement in SJM Decision, Page 3  (quoting Central Hudson):

       “Your service will not be restored unless you accept an ERT utility meter.”

  1.  Take Judicial Notice: The Court overlooked the facts in Exhibits listed below and therefore misapprehended that there is no Document  Regulation, Law or Tariff Stipulation that prevented Central Hudson , under the leadership of the Defendants and their  policies, from supplying an analog utility meter to the Plaintiff at the time he requested and demanded it and certainly no valid reason that the Plaintiff’s electricity could not have been restored anytime during the Defendants tenure as CEO and President of Central Hudson.  (See Exhibits AD, AE, AJ, AK.)
  2. Take Judicial Notice: The Court overlooked the facts submitted with Plaintiff's OSJM misapprehending the triable issue of fact that the continued demand for a PSC approval of the installation of an ERT transmitting utility meter at the Plaintiff's residence by Central Hudson under the Defendants leadership and their policies, (see Exhibits S {Page 3}, U)  in order to restore electricity to the Plaintiff’s home, is unjust, in view of it not being proven biologically safe and proven biologically dangerous. (See Exhibits AD, AE, AG, AJ, AK, K2, Z.) The Court overlooked the fact these digital utility meters are emitting a Class 2B possible carcinogen every twenty to thirty seconds, twenty four hours a day, which is in the same category as lead, benzene and DDT. (See Exhibit AC).  The Court overlooking these facts ignores the Fourth Amendment of the U.S. Constitution that declares a citizen has a right to be secure in their home from Government intrusion.
  3. The Court apparently overlooked the Plaintiff’s Citations of Law submitted with Plaintiff’s OSJM that states if the Government and a private party enter into a "symbiotic relationship" with one another it is a state action [Burton v. Wilmington parking Authority, 365 U.S. 715 (1961] and "although the conduct of private parties lies beyond the Constitution scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and as a result , be subject to constitutional  restrictions” [Edmonson v. Leesville Concrete Co. (1991)] and “there is a sufficiently close nexus between the State and the challenged action of the regulated entity…the action of the latter may be fairly treated as that of the State itself” (Jackson v. Metropolitan Edison Co, 419 U.S. 345, 351 (1974), citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)).
  4. The Court overlooked the facts in 4(a) through 4(c) of this document (also located in the Plaintiff’s OSJM), thereby misapprehending the triable issues of material fact concerning Central Hudson under the leadership of the Defendants and their policies of forcing the Plaintiff to live with a dangerous digital utility meter or to live without electricity, is a grave injustice that needs remedy and relief.
  1. Regarding the Courts Statements in SJM Decision on Pages 3 and 4:

 "The petitioner requested that the PSC convene an informal hearing regarding his refusal to accept the digital utility meter at his residence. In a letter dated March 3, 2014, the PSC denied Plaintiff’s request and stated that it did not have the authority to direct Central Hudson to install an analog utility meter.  The Plaintiff failed to appear either the July 3013 determination or the March, 2014 determination of the PSC and did not commence an Article 78 special proceeding challenging either decision."

  1.  Take Judicial Notice: The Court apparently overlooked the facts submitted in Exhibit U, (along with Plaintiff’s OSJM), where the Plaintiff was told in an official PSC letter that the PSC did not have the authority to direct Central Hudson to install an analog utility meter on the Plaintiff’s residence and that "rf concerns would be better addressed to the FCC and local government" which engendered futility for the Plaintiff.
  2. The Court apparently overlooked the facts in Exhibit AA in Plaintiff’s OSJM that detailed the futility experienced by the Plaintiff dealing with the PSC.
  3.  Take Judicial Notice: The Court apparently overlooked the case law cited in Plaintiff’s OSJM providing exceptions to exhausting all of ones’ administrative remedies mentioned in the OSJM Point III, which Case Law demonstrates is available if the administrative agency lacks the power to grant the effective relief sought by the Plaintiff. (Cave, 514 F.3d at 249.)
  4. Take Judicial Notice: The Court overlooked the facts detailed in items 5(a) through 5(c) of this document and said facts submitted in Plaintiff’s OSJM, misapprehending that the Plaintiff did not "fail" to take administrative actions but chose to seek remedy from the New York State Supreme Court after he realized he had been the victim of Fraud and other violations mentioned in the Plaintiff’s OSJM.
  1. Regarding the Courts Statements in SJM Decision Page 4:

“Defendant Laurito was an employee of Central Hudson from November1, 2009 to March 31, 2016.  He was CEO in October 2014.  On April 1, 2016, Mr. Laurito left Central Hudson for other employment.  At the time of this action was commence, Mr. Laurito (and Mr. Lant) was no longer an employee of Central Hudson." 

  1.  Take Judicial Notice: The Court overlooked the fact stated in Point XI (2nd paragraph from the bottom) that shows Defendant James P. Laurito had not departed from Central Hudson, as the Court had been misled by the Defendants and their attorneys committing Fraud on the Plaintiff.  The Court overlooked the fact that the Defendant James P. Laurito received a promotion within the Central Hudson/Fortis corporate structure of which Central Hudson is a part, and is currently now Executive Vice President of Business Development at Fortis.  The Court overlooked Point XI of Plaintiff's OSJM that reads: "Defendant James P. Laurito was CEO of Central Hudson until April 1st, 2016, when he became their Director and simultaneously became Executive Vice President of Business Development in the Parent Company Fortis", which Defendants never rebutted.
  2. Take Judicial Notice: The Court overlooked the fact in Point XI of Plaintiff’s OSJM that the Defendant James P. Laurito did not depart from Central Hudson as Defendants and attorneys would have us believe, but that James P. Laurito remained on the Board of Directors of Central Hudson.
  3. Take Judicial Notice: The Court overlooked the facts contained in Exhibit Q submitted with Plaintiff’s  OSJM, lawful Notice of Demand document, specifically, in item #4, Page 2 of said Notice, where in bold letters Plaintiff states: "Because we have committed no violation and no act besides self-defense against your wrong doing, any interruption of our electrical service is unjustified and will cause an obligation by the company and its policy makers to us of 100,000 dollars in addition to 10,000 dollars per day denied or failed service."   The Court overlooked in the Notice of Demand, that not only Central Hudson is claimed liable within this document but also claimed liable is its "policy makers" personally, which would include the top Executive leadership who set the course of strategies and direction for the Company as defined in the job description of CEO's and Presidents of any Company.  The Court also overlooked, in the same lawful notices, the names of "James P. Laurito" and "Steven V. Lant", which were in bold letters in the section where document addressed “To”, (in 2 places in beginning of mentioned document) provided in the Plaintiff’s OSJM.  (See Exhibit Q.)  The Court apparently, by overlooking this fact, misapprehends that in the Notice of Demand, not only Central Hudson is claimed liable, but also its "policy makers" which would include the top Executive leadership who set the course of strategies and direction for the Company as defined in the job description of CEO's and Presidents of any Company and is why the names of James P. Laurito and Steven V. Lant, which were in bold letters in the section where document addressed “To”, (in 2 places in beginning of mentioned document) provided in OSJM. (See Exhibit Q.)   The Court in overlooking this fact misapprehended that if the Plaintiff did, in fact, establish a tacit-agreement with the Defendants as case law and the prestigious Restatement of Contracts (second) described can happen under special circumstances, the Plaintiff’s agreement, with its terms and conditions, did and does not expire when the Defendants retire(d) or change(d) their employment status.
  4. The Court apparently overlooked case law and the comments cited in Point VIII of the OSJM, which states that Officers and Directors are liable for their intentional torts committed against those dealing with the Corporation. (Seagate Technology v. A.J. Kogyo Co. (1990) 219 Cal. App. 3d 696, 701; Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113 PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1372, 1379), and can also be liable for negligence and cannot hide behind the Company shield. “Director Status therefore, neither immunizes a person from individual liability nor subjects him or her to vicarious liability.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505).
  5. The Court apparently overlooked the case law and comments cited in the Plaintiff's OSJM that stated the Executives and Directors duty to the Plaintiff, is not governed by the business judgment rule (Id., at p. 507 n.15) and that The business judgment rule does not replace the common law duty to refrain from conduct that imposes an unreasonable risk of injury which every person owes to others  (Kurtz, Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal. App. 4th 1249, 1259; Frances T. v. Village Green Owners Assn., supra, 42 Cal. 3d 490, 507).
  6. The Court has apparently overlooked the case law citations with comments in Plaintiff’s OSJM  that stated:  Officers or directors may be subject to personal liability if they personally directed, or otherwise participated in the tortious conduct, or that, and  although the director or officer knew or reasonably should have known that some hazardous condition or activity under their control could injure Plaintiff, he or she negligently failed to take or order appropriate action to avoid the harm. (Michaelis v. Benavides (1998) 61 Cal.App. 4th 681, 685-687; Frances T. v. Village Green Owners Assn., supra, 42 Cal.3d at p. 508).  and that   Directors and officers have frequently been held liable for negligent nonfeasance where they knew that a condition or instrumentality under their control posed an unreasonable risk of injury to the Plaintiff, but then failed to take action to prevent it  (Frances T. v. Village Green Owners Assn., supra, 42 Cal.3d at p. 510) [citing Dwyer v. Lanan & Snow Lumber Co., supra, 141 Cal.App.2d 838]. ( Kurtz, Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App. 4th 1249, 1259; Frances T. v. Village Green Owners Assn., supra, 42 Cal. 3d 490, 507).
  7. The Court apparently overlooked these law citations (with comments) submitted in Plaintiff's OSJM indicating Defendants were agents of their Corporate principal, Central Hudson, and are liable for their own acts, regardless of whether the Principal is liable. As Executive Directors, their roles were to direct and ultimately control corporate conduct.  Directors individually owe a duty of care, independent of the corporate entity’s own duty, to refrain from acting in a manner that creates unreasonable risk of personal injury to third parties. (Seagate Technology v. A.J. Kogyo Co. (1990) 219 Cal. App. 3d 696, 701 ; Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113 ]; PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1372, 1379) and (Michaelis v. Benavides, supra, 61 Cal.App.4th 681, 683.)
  8. Take Judicial Notice: The Court  apparently overlooked facts in Point VIII of  Plaintiff’s OSJM presented here in this document in 6(a) through 6(e) misapprehending that if  James P. Laurito and Steven V. Lant were, in fact negligent, resulting in a Continuing Private Nuisance, Fraud, Breach of Contract and not limited to those, then the Defendants could be personally liable and changing employment status does not immunize them from the Plaintiff’s claim of liability as long as Complaint is filed within statute of limitations.
  1. Regarding the Court Statements in SJM Decision on Pages 4 and 5:

           "Initially, the Plaintiff contends that this Motion (SJM) is premature as he has not had the opportunity to conduct discovery.  The Motion was originally returnable February 6, 2017. On April 10, 2017 the Plaintiff served a Demand for Interrogatories and Notice to take deposition of the Defendants. On April 13, 2017, this Court so-ordered Defendants attorney's April 11, 2017 letter to the Court requesting a stay on Plaintiff's discovery demands pending a decision on this Motion. The Court granted the stay pursuant to CPLR section 3214(b).  The Defendants claim that since they were not employed by Central Hudson at the time this action was commenced, they are not in possession of any information the Plaintiff seeks. The Defendants also maintain that any discovery requests should be made to the non-party, Central Hudson:

  1.  The Court apparently overlooked the fact that the Plaintiff’s Constitutional Right to due process has been violated by not allowing him any discovery in Case# 16-1351.  The Court misapprehends that no CPLR Statute can trump any person’s Constitutional Rights to due process. Without discovery, there is no due process. U.S.C 42 Section 1983 states: "Every person who under the color of any statute, ordinance, regulation, custom or usage of any State and territory or the district of Columbia, subjects, or causes to be subjected, any citizen of the United states or other person within the jurisdiction thereof to the deprivation of rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
  2. Take Judicial Notice: The Court stating twice, "the Defendants are not in possession of any of the discovery the Plaintiff seeks" has overlooked the particular questions that only the Plaintiff knows, and  that would have been asked of  the Defendants in a deposition tailored to each Defendant dependent on what answers they gave to the previous question. The Court cannot possibly assert all the answers are not in the possession of the Defendants, as only the Plaintiff knows what those questions are.
  3. The Court apparently overlooked case law Baltodano v Merck, Sharp & Dohme (I.A.) Corp, March 3, 2011, Thompson, O.R detailed in Plaintiff’s Opposition to SJM which states Courts are not to render Summary Judgment based on gaps in proof if Plaintiff is denied the information needed to proceed.
  1. Regarding the Courts SJM  Statement  on Pages  5 and 6:

            CPLR section 3212 (f) permits a party opposing Summary Judgment to obtain further Discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated ( Jones v. American Commerce Ins. Co. 92 AD3d 844 [2nd dept. 2012])." …….." The mere hope of speculation that evidence sufficient to defeat a Motion for Summary Judgment may be uncovered during discovery is insufficient to deny the Motion as premature………...After a review of the record, the Plaintiff's request must be denied. As stated above, the Defendants are not in any possession of any discovery 0074 he Plaintiff seeks. The Plaintiff has failed to demonstrate that discovery might lead to relevant evidence or facts essential to oppose the Motion, which is exclusively under the control of the Defendants."

  1.  Take Judicial Notice: In citing CPLR Section 3212(f) the Court has overlooked or misapprehended the fact that the Plaintiff is not seeking "further discovery" which is the spirit of CPLR 3212, requiring more than the hope or speculation that evidence sufficient to defeat a Summary Judgment Motion may be uncovered. The court has overlooked the fact that the Plaintiff has had no discovery obtained from the Defendants and  that the spirit of CPLR 3212 does not apply to all discovery, which puts no requirement of having more than speculation or hope of discovering evidence necessary to pursue remedy. That requirement is only for further discovery which CPLR 3212 which assumes the opposition to the SJM has had.  Therefore, the SJM is premature, as no discovery has been granted to the Plaintiff, while the Defendants had discovery with answers to the Defendants 87 questions.
  2. Take Judicial Notice: The Court misapplied law granting the SJM as case law cited (with comments) states CPLR  3212(f),  mandates denial of a Motion for Summary Judgment is patently premature, meaning when it is made prior to the preliminary conference, if no discovery has been exchanged (Gao v. City of New York, 29 AD3d 449, 449 [1st Dept. 2006] ; Bradley v Ibex Construction, LLC, 22 AD3d 380, 380-381 [1st Dept. 2005]; McGlynn v. Palace Co., 262 AD2d 116, 117 [1st Dept. 1999]).  Under these circumstances the proponent seeking denial of a Motion as premature need not demonstrate what discovery is sought, that the same will lead to discovery of triable issues of fact, or the efforts to obtain the same have been undertaken (Bradley at 380). In McGlynn, the Court denied Plaintiff’s Motion seeking Summary Judgment, when the same was made after the preliminary conference but before the Defendant had obtained any discovery whatsoever. (McGlynn at 117).
  3. Take Judicial Notice: The Court errors within its SJM decision, when the Court proclaims (twice) that "the Defendants are not in possession of any of the discovery the Plaintiff seeks" as though this is a proven fact in granting Summary Judgment considering no discovery has been given to the Plaintiff.  Obviously, the Court has overlooked the particular questions within a deposition, that only the Plaintiff knows the questions the Defendants would have been asked, and that would have been tailored to each Defendant dependent on what the Defendants answered in the preceding questions. The Court cannot possibly assert all the answers requested are not in possession of the Defendants without first knowing what the particular questions are, as only the Plaintiff knows what those particular questions are.  The Court has no idea what the particular questions are and thus is not in a position to state that the Defendants cannot answer these questions.
  4. The Court has overlooked case law which states opposition to the SJM depends on the ability to secure evidence that is within the Defendant’s possession and Courts are not to render Summary Judgment based on gaps in proof if the Plaintiff has not had a fair chance to obtain necessary and available evidence from the other party (Baltodano v Merck, Sharp & Dohme (I.A.) Corp, March 3, 2011, Thompson, O.R).  Furthermore, it is well established that where the facts essential to justify opposition to Summary Judgment are exclusively in the control of the movant, Summary Judgment may be denied when the opposing party has not had a reasonable opportunity for disclosure prior to making the Motion [Baron v. Incorporated village of Freeport 143 A.D. 2d 792-793, 533 N.Y.S. 2d 143 (2nd dept. 1988].
  5. Take Judicial Notice: The Court has overlooked the fact that the Plaintiff has stated in his OSJM the following quote as a fact of evidence: "I, the Plaintiff, am faced with the challenge of piercing the corporate veil of Central Hudson required by the very nature of the claims and causes of actions in my Complaint against the past CEO, Steven V. Lant and the past President and CEO, James P. Laurito, as Defendants.  To have had my right to Discovery stayed and my submitted 153 Interrogatory questions refused to be answered by the Defendants, supported by an Order of this Court, is a severe, if not fatal, impediment to my attempt to pierce the Corporate veil, which is difficult in and of itself, with Discovery.  The timing of the Summary Judgment Motion is premature as I have had absolutely no disclosures from the Defendants through Discovery, which, in effect, violate my Constitutional Rights to due process."
  6. Take Judicial Notice: The Court, when referring to the Plaintiff, makes the statement "Plaintiff claims" throughout the 10 pages of its Summary Judgment decision. The Court has violated impartiality by affirming (at the bottom of Page 5 and at the top of Page 6) that "the Defendants are not in possession of any discovery the Plaintiff seeks" as though this statement is a proven fact. The Plaintiff has proven this to be erroneous in items 7(b) and 8(c).
  7. The Court overlooked the fact that the Plaintiff’s case depends on the ability to secure evidence that is within the Defendant’s possession and Courts are not to render Summary Judgment based on gaps in proof if the Plaintiff has not had a fair chance to obtain necessary and available evidence from the other party (Baltodano v Merck, Sharp & Dohme (I.A.) Corp, March 3, 2011, Thompson, O.R).  Furthermore the Court overlooked the well-established fact that where the facts essential to justify opposition to Summary Judgment are exclusively in the control of the movant Summary Judgment may be denied when the opposing party has not had a reasonable opportunity for disclosure prior to making the Motion [Baron v. Incorporated village of Freeport 143 A.D. 2d 792-793, 533 N.Y.S. 2d 143 (2nd dept. 1988].
  8. The Court overlooked the fact that the Plaintiff has had absolutely no disclosures from the Defendants through discovery, which in effect, violate his Constitutional Rights to due process. The Fourteenth Amendment clearly states: “[N]o Person ought to be taken imprisoned, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law”.
  9. Take Judicial Notice: The Court has misapplied the law by granting Summary Judgment based on where "there is no genuine dispute as to any material fact and the movant is entitled to a judgement. as matter of law" Fred R. Civ. p. 56(a) but  ignored case law  that states "Only through Discovery can it be determined whether a material factual issue exists which precludes Summary Judgment." Vega v. First Fed. Savings & Loan Assoc. of Detroit, 622 F.2d 918. 926 (6th Cir. 1980). Therefore, a non-moving party "must receive 'a full opportunity to conduct discovery' to be able to successfully defeat a Motion for Summary Judgment."  Ball v. Union Carbide Corp., 385 f.3d 713, 719 (6th Cir.2004) quoting Anderson v. liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "(S)ummary Judgement should not [be] awarded until the [non-movant be allowed some discovery."  Whites’ landing Fisheries, Inc. v. Buchholdzer, 29 F.3d 229, 231 (6th Cir.1994).  Instead, where the non-movant demonstrates "by affidavit or declaration" that "it cannot present facts essential to justify its opposition, (which Plaintiff did in above quote in Item 8(e)) the Court may…defer considering the Motion or deny it" Fed. R. Civ. P. 56(d) if the Court enters Summary Judgment 'without permitting the [non-movant] to conduct any discovery at all’, "such a decision will constitute an abuse of discretion," Vance v. United States, 90 F. 3d 1145. 1149 (6tth Cir. 1996); accord CenTra, Inc. v. Estrin, 538 F. 402, 420, (6th Cir. 1996);  accord CenTra, Inc. v. Estrin, 538 F.3d 402, 420 96th Cir. 2008) ; United states v. Var-Ken, Inc., 875 F.2d 868, 1989 WL 42913, at *2 (6th Cir. 1989).
  1. Regarding the Courts Statements in the SJM Decision on Page 6:

Proceeding to the merits, it is axiomatic that the Summary Judgments a "drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue" (Mcday v. State). In deciding whether Summary Judgment is warranted, the Courts main function is issue identification, not issue determination. The party seeking Summary Judgment has the burden of establishing its entitlement thereto as a matter of law.  The evidence must be construed in a light most favorable to the party opposing the Motion. In order to defeat the a Motion for Summary Judgment the patty opposing the Motion must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of action:

  1. The Court has misapprehended the law and overlooked the facts that are needed to prove “factual issues" and that the deprivation of discovery harms the Plaintiff in "attempting to establish the existence of material issue of fact" and "improperly deprives a person of a trial” of discovered "disputed facts"(Arkansas Right to Life v. Butler, 983 F. Supp. 1209, 1215 (W.D. ARK 1997), afford 146 F.3d 558 (8th Cir. 1998).
  2. Take Judicial Notice: The Court acknowledges that Summary Judgments are a "drastic" and "extreme remedy" and yet the Court overlooked case law that states they "should be sparingly employed."  Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.1970).
  3. Take Judicial Notice: The Court overlooked “Statement of Facts: items 1, 3, 4, 5, 10, 11, 12 and Rebuttal Points: V, VIII, IX, X, IX” of Plaintiff’s OSJM and thus misapprehended the importance of this lawsuit to the public and Summary Judgement may not be appropriate in complicated and important litigation" (10B Charles Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and procedure Civil 2732 (2732 (3d.ed. 2007), See,e.g. Kenedy v. Silas mason Co., 334 U.S. 249, 256 (1948 (warning against using Summary Judgment "for deciding issues of far-flung import.).
  4. Take Judicial Notice: The Court has misapplied the law by granting Summary Judgement as cases premised on alleged violations of Constitutional or Civil Rights of Plaintiff are frequently unsuitable for Summary Judgment and that  Courts may refuse to grant Summary Judgment because it felt a fuller record in order necessary in order to be able to decide the issues involved.  Plaintiff made such claims in Point IX of OJSM. (10B Wright & Miller, supra, at 27322. See, e.g. Arkansas Right to Life, 983 F. Supp. at 12215) "in cases of alleged violations persons rights, Summary Judgment may be inappropriate"), (See Exhibit J).
  5. Take Judicial Notice: The Court acknowledges Summary Judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to a Judgment as matter of law." Fred R. Civ. p. 56(a).  However, the Court overlooked case law that states: "Only through discovery can it be determined whether a material factual issue exists which precludes Summary Judgment." Vega v. First Fed. Savings & Loan Assoc. of Detroit, 622 F.2d 918. 926 (6th Cir. 1980). Therefore, a non-moving party "must receive 'a full opportunity to conduct discovery' to be able to successfully defeat a Motion for Summary Judgment ." Ball v. Union Carbide Corp., 385 f.3d 713, 719 (6th Cir.2004) quoting Anderson v. liberty Lobby, Inc., 477 U.S. 242, 257 (1986)." (S)ummary Judgment should not [be] awarded until the [non-movant be allowed some discovery."  Whites landing Fisheries, Inc. v. Buchholdzer, 29 F.3d 229, 231 (6th Cir.1994). Instead, where the non-movant demonstrates "by affidavit or declaration" that "it cannot present facts essential to justify its opposition, the Court may…defer considering the Motion or deny it" Fed. R. Civ. P. 56(d) … if the Court enters Summary Judgment ' without permitting the [non-movant] to conduct any discovery at all, "such a decision 'will constitute an abuse of discretion," Vance v. United States, 90 F. 3d 1145. 1149 (6tth Cir. 1996); accord CenTra, Inc. v. Estrin, 538 F. 402, 420, (6th Cir. 1996); accord CenTra, Inc. v. Estrin, 538 F.3d 402, 420 96th Cir. 2008); United States v.Var-Ken, Inc., 875 F.2d 868, 1989 WL 42913, at *2 (6th Cir. 1989).
  1. Regarding the Courts Statements in SJM Decision on Pages 6 and 7:

"It is clear that the Plaintiff's causes of action, whatever their label, all arise from the same claims that he made to the Public Service Commission …..Disputes involving billing and service or disconnection  by the utility company of such service is subject to primary jurisdiction of the Public Service Commission…..The doctrine of primary jurisdiction requires that matters of the reasonableness of utility rates, rules, or practices must first be submitted to the Public Service Commission.”

  1. Take Judicial Notice: The Court misapprehended and overlooked the fact that the Plaintiff did not file any Complaint with the PSC that regarded a breach of contract. The matter of the Plaintiff claiming the establishment of a tacit-agreement between the Plaintiff and the Defendants is a genuine triable fact that needs to be decided upon in Court and not by the PSC.  The fact that the Court overlooked the PSC deciding against the Plaintiff’s request to have electricity restored with the installation of a safe analog utility meter from Central Hudson, has no bearing on whether or not a tacit-agreement was, in fact, established between the Defendants and the Plaintiff and is certainly not in the jurisdiction of the PSC.
  2. Take Judicial Notice: The Court in overlooked legal precedents that consider primary jurisdiction and that question if Defendant’s liability may turn upon correctly, interpreting administrative regulations [Far East Conference v. United States, 342 U.S. 570, 574-5 (1952); Mississippi Power and Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir.1976),cert. denied, 429 U.S. 1094 (1977)].  The Court misapprehended the fact that the Defendants, in Plaintiff’s case, would be shielded, as the PSC complaint only named Central Hudson as a Company regulated by the PSC and as that agency does not regulate individuals.
  3. Take Judicial Notice: The Court overlooked the Plaintiff’s OSJM, Point I, which states that the PSC does not have exclusive jurisdiction (and other considerations), supporting application of the doctrine which are whether the matter at issue has been committed exclusively to an agencies jurisdiction.   In  re: Paxil  Litigation, 2002  WL 1940708, at  *2 (C.D. Cal. August  16,  2002), on reconsideration, 2002  WL 31375497  (C.D. Cal  Oct  18,2002).  Is the matter beyond “the conventional experience of judges” or does the agency possess the “more specialized experience, expertise and insight” lacking in the Court? [Far East Conference v. United States, 342 U.S. at 574. See also, Premo Pharmaceutical Laboratories, Inc. v.  United  States,  629  F.2d  795,  803  (2dCir. 1980) (determination as to whether a drug is “safe and effective” committed to FDA due  to  superior  expertise).].
  4. Take Judicial Notice: The Court has overlooked the facts of Fraud (submitted in Plaintiff’s OSJM, Point X) being committed by the Defendants claimed by the Plaintiff and that the legal precedents state that the administrative agency has no jurisdiction.  For example, in United States ex rel. Johnson v. Shell Oil Co., 34 F. Supp. 2d 429, 431 33 (E.D. Texas 1998), the Court explained that no administrative agency has the power to settle or litigate false claims or actions, while a U.S. District Court (or a State Supreme Court) does have exclusive jurisdiction vested in it for this type of claim.  See; United States v.Hardrives, Inc.,1993 WL 385498, at *6 n.10 (9th Cir. Sept. 30, 1993) ("Agency has no jurisdiction over fraud claims and so cannot have the ‘first word’ on the existence of Fraud”).  Therefore, the Court misapprehended that the Plaintiff’s claim of Fraud is not under the jurisdiction of the PSC and cannot claim primary jurisdiction.
  5. Take Judicial Notice: The Court has overlooked that primary jurisdiction does apply based on:“(1) the need to resolve an issue; (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority; (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that; (4) requires expertise or uniformity in administration.” Slip op. at 24 (quoting Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (internal citations omitted)). The District Court in Glenn held that, applying these considerations, the primary jurisdiction doctrine did not apply (Glenn, et al. v. Hyundai Motor America, et al. No. SA CV 15-2052-DOC (June 24, 2016 C.D. Cal.). As to the first two elements, the Court found that because the Plaintiff’s sought monetary relief - relief beyond what National Highway Traffic Safety Administration (NHTSA) can provide in a recall - there is a substantial need to resolve the issue in Court. Id. Regarding the third factor, there was also no authority suggesting that Congress intended NHTSA to have exclusive regulatory authority over vehicle safety. Id.at 2.
  6. The Court overlooked or misapprehended the facts of the Plaintiff’s OSMJ, Point I, also demonstrating that the PSC cannot provide relief in the form of monetary damages the Plaintiff sought and that the PSC does not have exclusive jurisdiction.
  1.  Regarding the Courts Statements in SJM Decision on Page 7:

"Disputes involving billing or service with utility company or disconnection by utility company of such service are subject to primary jurisdiction of the Public Service Commission. The doctrine of primary jurisdiction requires that matters concerning reasonableness of a utility's rates, rules or practices must first be submitted to the Public Service Commission."

  1. Take Judicial Notice: The Court overlooked the facts in Plaintiff's OSJM, Points VII, IX, and X, that states the claims of the Plaintiff were not limited to "billing, service, utility rates, rules or practices" of the utility which the Court states involves primary jurisdiction of the PSC, but also included claims of Fraud, Breach of Contract and Constitutional and Human Right Violations and not limited to those which the PSC has no jurisdiction.
  2. Take Judicial Notice: The Court overlooked the fact that the Plaintiff did first submit his matter to the PSC before he filed a lawsuit with the Court and only after the PSC stated in an official letter that the PSC did not have the authority to grant the relief the Plaintiff sought and the "rf. concern would be better addressed to the FCC or the local government".  (See Exhibit U.)
  3. Take Judicial Notice: The Court misapplied the law granting the Defendants SJM by overlooking the exclusions regarding Plaintiff having to exhaust his administrative remedies which the Plaintiff stated in Point III of the Plaintiff’s OSJM.
  1. Regarding Courts Statements  in SJM Decision on Page 8:

"Plaintiff was informed of his administrative appeal process to follow after both decisions but failed to undertake an appeal. As a result, the Plaintiff failed to exhaust his administrative remedies":

  1. Take Judicial Notice: The Court overlooked case law that demonstrates when remedies provide no genuine opportunity for adequate relief, the litigant is exempted from that rule. It has been documented in OSJM that the PSC cannot force Central Hudson to the install an analog utility meter on the Plaintiff’s home, which is what the Plaintiff was requesting from the PSC. (See Exhibit U.)  The Court also overlooked that fact is further corroborated by an official correspondence from the PSC via a Foil Request (see Exhibit AE) wherein the PSC states that “Central Hudson's electric tariff PSC No.15 Leaf 51 specifies that the utility meter is the Company's property. The Company is responsible for selecting the utility meter that is most appropriate to the customer service. Customer preference is not a consideration."  The Court misapprehended that the PSC has no authority to order Central Hudson to comply with the Plaintiff’s requests and cannot provide relief Plaintiff sought, only Central Hudson could have provided the relief the Plaintiff had requested.
  2. The Court also overlooked that an Article 78 special proceeding cannot force Central Hudson to do anything as it only has jurisdiction over Administrative Government Agencies like the PSC and that the PSC has officially admitted it has no authority to grant Plaintiff’s requests.  Thus the Plaintiff experienced futility knowing his claim would be denied.  (See Exhibits U, AE.)
  3.  The Court also overlooked that the Plaintiff should also be exempted from exhaustion of administrative remedies based on the fact that the Plaintiff has raised Constitutional questions which could not be resolved through administrative process. [Waste Connections, Inc. v. Okla. Dep’t of Envtl. Quality, 2002 OK 94 (Okla. 2002)].
  4. The Court overlooked that exhaustion of administrative remedies should not apply, because nothing of an administrative nature is to be or can be done.  The issues the Plaintiff raises do not require technical knowledge and experience but one that would involve the interpretation and application of law.
  5.  The  Court overlooked the Plaintiff is seeking relief on different claims other than what the PSC has jurisdiction over, such as, Fraud, Breach of Contract and Constitutional violations, which the PSC has no mechanisms to deal with.
  6. The Court overlooked the Plaintiff seeking monetary relief which the PSC does not have the authority to disburse so Plaintiff should be exempt from exhausting administrative remedies.
  7. The Court overlooked the law that Plaintiff should be exempted from the rule of exhaustion of administrative remedies as there is strong public interest involved.
  1. Regarding the Courts SJM Decisions Statements on Page 8:

"Defendants have, therefore, sustained their burden of proof entitling them to Summary Judgment. As the PSC maintains primary jurisdiction in matter relating to termination of service, and as the PSC's exercise of primary jurisdiction has ended unsuccessfully for the Plaintiff, the Court has now only limited power of review, and the Plaintiff has shown no grounds for conducting what would be a 'back door' review of the PSC decisions”. 

  1. Take Judicial Notice: The Court has overlooked the fact that the PSC approval of the electrical electric service disconnection of the Plaintiff has nothing to do with the Plaintiff’s claim of Fraud, as this claim is not dependent on the electrical service being disconnected.  The Court overlooked the fact that the claim of Fraud has to do with the Defendants leadership and policies maintaining digital utility meters are safe, when it is proven in Plaintiff’s OSJM they are dangerous.  Similarly, the Court overlooked the fact that regarding the Plaintiff’s claim of Fraud against the leadership and policies of the Defendants, maintaining that analog utility meters are no longer available (when in fact, they are available as demonstrated in the Plaintiff’s OSJM), is not dependent on the PSC approval of termination of the Plaintiff’s electrical service.  In overlooking these facts, the Court seemed to have misapprehended that the PSC approval of the termination of Plaintiff's electrical service does not exonerate Central Hudson and the Defendants from all wrong-doing as the Courts decision implies.
  2.  Take Judicial Notice: The Court has overlooked that fact that the PSC approval of the electrical service disconnection of the Plaintiff  does not nullify the Plaintiff’s claim regarding the Breach of Contract, as an issue of fact, involving the Defendants ignoring lawful notices and becoming bound in a tacit-agreement, which Plaintiff demonstrated in OSJM and in this Motion. (See Exhibit Q.)
  3. Take Judicial Notice: The Court overlooked the fact that the PSC approved the electrical service disconnection of the Plaintiff by Central Hudson, under the leadership of the Defendants and their policies, being identified as a state actor violating the Constitutional and International Human Rights under the color of law, as Plaintiff claims, is not dependent on the mentioned PSC termination approval but is actually a component of the claim, as the Court seems to have misapprehended.
  4. Take Judicial Notice: The Court overlooked facts in12(a) through12(c) as the burden of proof has not been met, as the primary jurisdiction claimed by the Defendants with the PSC, in termination of electrical service disconnection, does not apply to Fraud, Breach of Contract and Constitutional violations under the color of law.
  5. Take Judicial Notice: The Court misapplied the law when it overlooked its own statements on Page 6 of its decision where it stated " the Courts main function is issue identification, not issue determination" when granting the Defendants SJM claiming they have met the burden of proof while the Court overlooked the facts in the Plaintiff’s OSJM and overlooked the obvious fact, that this case, is more than just about termination of electrical service, but also about Fraud, Breach of Contract, Human Right Violations and not limited to those.
  1. Regarding the Courts Statements in SJM Decision on Page 8:

"The issue of primary jurisdiction aside, the Court agrees with the Defendants that collateral estoppel precludes the Plaintiff from re-litigating the same issues that were determined in the prior proceeding even though the Defendants were not named parties in the PSC proceeding. The Plaintiff admits that he filed a complaint with the PSC and received the adverse determinations described above. The Defendants allege that the Plaintiff raises the same issues in this proceeding that he litigated before the PSC. Collateral Estoppel, or issue preclusion, gives conclusive effect to an administrative agency's quasi-judicial determination when several conditions are met: 1) that the issues in both proceedings are identical; 2) that the issue in the prior proceeding was actually litigated and decided; 3) that there was a full and fair opportunity to litigate in the prior proceeding; 4) that the issue previously litigated was necessary to support a valid and final judgement on the merits."

  1. Take Judicial Notice: The Court overlooked the facts of the Complaint filed with the PSC only dealing with the issue of restoring electrical service using an analog utility meter. (See Exhibit U.) The PSC not having jurisdiction, did not rule on Fraud, Breach of Contract, Constitutional and International Human Rights Violations, Trespass, Abuse of Right and Continuing a Private Nuisance and not limited to those which are all claimed by the Plaintiff.  The Court overlooked the fact  that Quasi-judicial activity is limited to the issues that concern the particular administrative agency and that  proceeding with the Plaintiff’s lawsuit would not be re-litigating the same issues because those issues were never litigated to begin with, therefore, Collateral Estoppel does not apply.
  2. Take Judicial Notice: The Court overlooked the fact that true litigation never happened, as the PSC May 3, 2013 decision involved none of the elements of due process such as discovery, depositions, motions and briefings. The court misapplied law by overlooking   "Collateral Estoppel applies [when] an issue of fact or law is actually litigated and determined by a valid and final judgment. A judgement is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in a prior action." Green v. Dupuis, 2005 U.S. Dist. LEXIS 26320 (E.D. Mich. Oct. 24, 2005). Due process cannot be denied through Collateral Estoppel.
  3. Take Judicial Notice: The Court overlooking these facts in light of its own criteria for establishing Collateral Estoppel does not apply to the Plaintiff’s lawsuit: (1) The issues are most certainly not identical as in this lawsuit there are seven claims being Fraud,  Breach of Contract, Constitutional violations, International Human Rights violations, Trespass, Abuse of Right and a Continuing Private Nuisance and only 2 claims in the PSC Complaint being restoration of electrical service and a written guarantee of an analog utility meter; ( 2) The PSC complaint was not "actually litigated" as the informal hearing was denied (id.); ( 3) There was no full and fair opportunity to litigate the prior proceeding as  the PSC officially stated it did not have the authority to grant the Plaintiff relief sought so Plaintiff experienced futility and; (4) The issues were never "previously litigated" (Id.).
  4. Take Judicial Notice: The Court overlooked the fact the Plaintiff’s complaint to the PSC, (registered as PSC Case#325148), was never litigated, as the request for an informal hearing/review was denied on May 3, 2014 by the Office of Consumer Affairs Manager, Ramona Munoz. (See Exhibit U.) The Court also overlooked Ms. Munoz statements in Exhibit U that states "All relevant hearing determinations must reflect 'applicable state laws, Commission rules, regulations, orders and opinions' and because the relief you seek is beyond the power of an informal hearing officer to provide."  The Court also overlooked that Ms. Munoz stated in a previous paragraph of that same letter, "…any concerns you have regarding rf technology would be better addressed by either the FCC or your local government officials." The Court misapprehended that the PSC letter was officially stating that the PSC is not the agency to help with the remedy sought, and that the Plaintiff should go to the "FCC or local government”.  In view of this, the Plaintiff may appeal directly to a Court of law and bypass the quasi-judicial activity of an administrative agency if the agency's remedies would be inadequate. (Coit Indep. Joint Venture v. FSLIC, 489 U.S. 561, 109 S. Ct. 1361, 103 L. Ed. 2d 602 [1989])  
  1. Regarding the Courts Statements in SJM Decision on Pages 9 and 10:

"The Court agrees with the Defendants that they cannot be held liable for the actions of the Corporation or of the employees of Central Hudson…a Director or Officer of a Corporation like the Defendants are not personally liable for the torts or wrongful acts of the Corporation or for their co-employees unless they personally participated in the wrongful act or conduct.

  1. Take Judicial Notice: The Court misapprehends the fact that Plaintiff is not holding the Defendants liable for what the Corporation did or what its employees did, as stated in the SJM decision, but rather for Defendants having Breached a Contract, creating and directing policy that maintained Fraud,  Civil Rights violations and gross negligence (but not limited to those).
  2. The Court has overlooked that the Courts have consistently held that intentional conduct by a Corporate Officer will result in personal liability (see Frances T. v. Village Green Owners Association).  Similarly, if a Corporate Officer “authorizes, directs or in some meaningful sense actively participates in the wrongful conduct,personal liability will attach, even though the actions were taken by the Corporation. In this situation, there is joint liability. Personal liability also enters into the equation when a Corporate Officer engages in Fraud.
  3. The Court overlooked that fact that Corporate Executives need not possess personal knowledge of a regulatory violation to incur criminal responsibility.  United States v. Dotterweich, 320 U.S. 277 (1943).  Consumer Fraud is a crime.
  4. Take Judicial Notice: The Court has overlooked the fact that the Plaintiff has submitted in the OSJM (Exhibit Q) containing lawful Notice of Demand that states, a legal maxim, on Page 8, Item 33: “Notice to principal is notice to agent and notice to agent is notice to principal.  All rights are fully reserved.”  The Court misapprehended that Supervisor, Daniel Harkenrider and Legal Counsel, Paul Colbert, were agents of the Defendants and as such, the Defendants received the notices and therefore, cannot claim otherwise. Obviously the above mentioned legal maxim demonstrates the lawfulness of a Notice (not just a “letter”) and that a represented individual can be delivered a Notice through its agents.
  5. Take Judicial Notice: The Court has overlooked the facts the Plaintiff has presented (Point- X of OSJM) by establishing the Defendants as Executive leadership participated in Fraud: (1) A false misrepresentation, actual or implied, or the concealment of a matter (Central Hudson under the leadership of the Defendants and their policies  falsely claimed analog utility meters were not available to the Plaintiff and the public ); (2) Knowledge of the falsity or  statements (Central Hudson under the leadership of the Defendants knew that Central Hudson had operational analog utility meters removed during new construction that were tested to see if they are good and brought back to the shop); (3) Intent to mislead (Central Hudson under the leadership of the Defendants and their policies mislead the Plaintiff and the public to get them to use digital utility meters); (4) Reliance (Central Hudson, under the leadership Defendants and their policies was relied upon because they were regulated by the PSC and the Plaintiff did not  know the PSC and Central Hudson were colluding (and still are) to commit Fraud on the Plaintiff and the Public); (5) The injury to the Plaintiff from Fraud is that the Plaintiff relied on the Fraud of Central Hudson who under the leadership of the Defendants were colluding with the PSC and deceived the Plaintiff into believing that analog utility meters were not available, thereby causing the Plaintiff to live without electrical service for a couple of years before seeking Court remedy. The Plaintiff has met all the conditions for proving Fraud. (See Exhibits AE, U {Page 2}.)
  1.  Regarding the Courts Statements in the SJM Decision on Page 10:

"The Plaintiff’s theory of personal liability against the Defendants arises from their failure to respond to a letter he wrote to them at Central Hudson in March 2013. The Defendants claim that they never were aware of or saw the Plaintiff's communications, and point out that any complaints to Central Hudson were addressed by service supervisors or legal counsel. They also point out that they played no roll in the Plaintiff's utility meter dispute. In the Court's opinion, the Defendants have adequately demonstrated they had no knowledge of Plaintiff’s claims, and that, in any case, neither took action nor failed to take any action which would result in their personal liability."

  1. Take Judicial Notice: The Court overlooked all the facts (Point VII of the Plaintiff’s OSJM), concerning the notarized, lawful documents, sent certified mail (return receipt) by the Plaintiff to Defendants (by name) at their main place of business. The Court misapprehended the distinction between "a letter" and a “lawful notice”, as these documents were not "complaints" but rather, Notices of Violations and Demands to correct them. The Courts reference to the Plaintiff’s lawful documents as a "letter”, which the Defendants claimed in their SJM Motion, is repeated in the Courts February 14, 2018 SJM decision on Page 10.  The Court misapprehended the fact that, just as with a Bill of Sale or a Will, each with title headings on the top of the document, signed and notarized, all considered to be lawful documents and are not just "letter(s)".  Thus, so it is also true of the Plaintiff’s Notice of Demand, Notice of Default/Warning of Liability (which was sent to Defendants by Plaintiff, with title headings (in bold print) on top of each document, with terms and conditions itemized and numbered, and signed and notarized) are all lawful documents sent certified mail (return receipt) and not just "letters".  (See Exhibit Q.)
  2. Take Judicial Notice: The Court overlooked the Plaintiff citing legal prerequisites for establishing a legally bound tacit-agreement, (as laid out in the Plaintiff’s OSJM document, Point VII), which documented a tacit-agreement is supported by case law and the classic work Restatement of Contracts (second) legal treatise, in Section 69, “Acceptance by Silence”, published in 1981 by the American Law Institute and used as a contract law reference throughout all of Jurisprudence.  (See Exhibit AM.)  As the Court acknowledges the general rule, silence or inaction in the face of an offer will not constitute acceptance of the offer.  The Court, however, overlooked and/or misapprehended the Plaintiff citing legal case law demonstrating there are special circumstances where silence and inaction may constitute an acceptance of an agreement.
  3. Take Judicial Notice: The Court overlooked the plaintiff citing legal prerequisites for establishing a legally bound tacit-agreement, as laid out in the plaintiffs OSJM document in Point VII, which documented a tacit- agreement is supported by case law and the classic work Restatement of Contracts (second) treatise, published in 1981 by the American Law Institute and used as a contract law reference throughout all of jurisprudence.  As the Court acknowledges the general rule, silence or inaction in the face of an offer will not constitute acceptance of the offer. This Court, however, overlooked or misapprehended the "Silence is Acceptance" principle laid out in the classic law reference “American Law Institute, Restatement of Law, Contracts (2nd), Section 69” demonstrating there are special circumstances where silence and inaction may constitute an acceptance of an agreement.
  4. Take Judicial Notice: The Court has obviously overlooked these facts stated in Point VII of Plaintiff's OSJM detailing special circumstances that would create a binding tacit-agreement :
  1. Silence may operate as an acceptance under the rule stated in Restatement of Law, Contracts, (Second), "Silence is Acceptance" Section 69(1)(b): "Where the offeror has stated or given reason to the offeree to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer." [Golden Eagle Ins. Co. v. Foremost Ins. Co (1993) 20 CA4th, 1732, 1385, 25CR2d 242".
  2. If there is a relationship between the parties or a previous course of action by which silence or inaction can be understood as acceptance under the rule stated in Restatement of Law, Contracts, (Second), "Silence is Acceptance" Section 69(1) (c): "Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not accept." [Southern Cal. Acoustics Co. C.V. Holder Inc. (1969 71 C2nd 719, y22 79 CR 319" See also Circuit City Stores Inc. v. Najjd (Cir. 2002), 294 F3rd 1104, 1109].

(4) The Court overlooked the fact that Central Hudson, under the leadership and the policies of the Defendants, in collusion with the PSC, applied the same "Law of Acquiescence" with deployment of digital transmitting utility meters in their customer base, without physical or oral consent of their customers.  Based on the fact that not one Central Hudson customer commented during the PSC comment period, deployment of meters went forward.  (See Exhibit L).

(5) The Court overlooked the fact that Central Hudson, under the leadership of the Defendants, and their policies, in collusion with the PSC, reasoned that the public acquiesced and tacitly gave purported consent.  (See Exhibit AF1, 1st page, 2nd paragraph.)

(6) Central Hudson, under the leadership of the Defendants and their policies, in collusion with the PSC, claimed to have established a contract with its customers, called the Tariff, once again based on the Law of Acquiescence, due to silence and inaction of the public. (See Exhibit X.)

(7) The court overlooked the special circumstances just described and documented  in Plaintiff’s OSJM and in this Motion that demonstrate that the mentioned lawful notices, notarized and sent certified mail (return receipt) and addressed to the Defendants, several times, over the course of the two months preceding the May 2013 removal of the digital transmitting utility meter and installation of remanufactured analog utility meter, carried out, in self- defense, did in fact, establish a tacit-agreement that does not expire when the Defendants retire or change employment. The Defendants were made personally liable and Central Hudson was made liable as a company, as stipulated in the Plaintiffs lawful notices. (See Exhibit Q.)

  1. The Court overlooked the facts detailed in Plaintiff’s OSJM and laid out here in items 15(a) through 15(c), of this Motion, that under special circumstances a tacit-agreement can be established and binding as a principle of law and has been used by Central Hudson, under the leadership of the Defendants and the PSC to further their agendas without any public support or knowledge.  The Court overlooked those special circumstances described above (documented in Plaintiff’s OSJM) and in this Motion demonstrates that the mentioned lawful notices, notarized and sent certified mail (return receipt) and addressed to the Defendants, several times, over the course of the 2 months preceding the May, 2013 removal of the digital transmitting utility meter and installation of refurbished analog utility meter, (carried out in self-defense) did, in fact, establish a tacit-agreement that does not expire when the Defendants retired or changed employment. (See Exhibit Q.)
  2. Take Judicial Notice: The Court overlooked several important facts regarding the lawful notices purportedly being replied to by "service supervisors and legal counsel". The Plaintiff did not receive any communication from the Defendants or their agents, referring to or mentioning, the several lawful notices by name of notice, date of notice, or discussing not accepting terms and conditions of lawful notices submitted in Plaintiff’s OSJM. (See Exhibits AF1, AF2.) The June 21st, 2013 letter written by Central Hudson’s attorney, Paul Colbert, was a response to the PSC complaint and not the lawful Notices of Plaintiff.   The Court apparently overlooked Exhibit AA in OSJM, which included an email, dated Friday, June 21st, 2013 (3:46pm), from Mr. Colbert, to the Plaintiff, that states, “Attached is a letter that has been sent to you by United States mail regarding your complaint to the New York Public Service Commission concerning your electric service.  The letter has also been provided to the PSC staff.  Please contact me with any questions.”  (See Exhibit AA, PSC log, Page directly before Paul Colbert letter.)
  3. Take Judicial Notice: The Court overlooked the fact that the Defendants and/or their agents failed to send a sworn affidavit to the Plaintiff, which Plaintiff stated and required in the lawful Notice of Demand as a lawful reply, stating Defendants and/or agents do not agree with facts and terms and conditions of lawful Notice of Demand or, the Notice of Default/ Warnings of Liability, submitted as in Plaintiff's OSJM. (See Exhibit Q, Item 18, Page5.)
  4. Take Judicial Notice: The Court overlooked the fact that the only communication made to the Plaintiff in the stipulated required 14 days was the letter from a single supervisor named Daniel Harkenrider, who in his April 1, 2013 letter, does not include any reference to the lawful Notice of Demand by name or date of Notice nor does he rebut any of its facts therein, and does not state that he or anyone he is representing does not consent to the terms and conditions of lawful Notice of Demand. Mr. Harkenrider's letter was not a "sworn affidavit" as required by the Plaintiff's Notice of Demand as a lawful reply. (See Exhibit Q, item 18, Page 5.)
  5. The Court overlooked the fact that legal counsel Paul Colbert, sent letters to the Plaintiff dated June 21, 2013 and September 20, 2103, three months and five months, respectively, beyond the March 21 Notice of Demand and obviously beyond the 14 day date to respond to Notice of Demand stipulations. Attorney Colbert also does not mention lawful Notice of Demand or Notice of Default/Warnings of Liability, by name or date, nor does he mention that he, or anyone he is representing, does not consent to the terms and conditions of the lawful Notices of Demand or Notice of Default /Warnings of Liability.  Attorney Colbert does not send a "sworn affidavit" required by lawful Notice of Demand as a lawful reply. (See Exhibit AF1.)
  6. The Court overlooked the fact that the Plaintiff did not write a single letter to the Defendants but sent several sets of the lawful notices on March 21, 2013 and April 9, 2013 (Exhibit Q) to the Defendants addressed to their name and principal place of work over the course of several months.
  1.  Regarding the Courts Statements in the SJM Decision on Page 10:

"They (Defendants) also point out that they played no roll in the Plaintiff’s utility meter dispute. In the Court's opinion, the Defendants have adequately demonstrated they had no knowledge of Plaintiff’s claims, and that , in any case, neither took action nor failed to take any action which would result in their personal liability.”

  1. Take Judicial Notice: The Court has overlooked the facts that  Defendants James P. Laurito and Steven V. Lant were not just employees of Central Hudson but were also the top Executives of the Company and whose responsibilities typically include decision makers on strategy and other key policy issues.
  2. Take Judicial Notice:  The Court overlooked the fact that the policy and decision to terminate any utility meter readers job and irresponsibly irradiate the Plaintiff and the Public (by installing digital transmitting utility meters), was the Defendants decision as CEO and President of Central Hudson.
  3. Take Judicial Notice: The Court overlooked the fact that the policy and decision to deceive the Public with the false notion that analog utility meters are unavailable, when in fact they are available, and being used in 12 states (see Exhibits AD, AJ, AK), was part of a policy that they created and, at the very least, they directed as Chief Executives of the Corporation.
  4. Take Judicial Notice: The Court overlooked the fact that the policy and decision to not allow analog utility meters which had been taken off customer homes (and had been tested good) to be not supplied to customers, when requested by customers, was part of a policy that the Defendants created, or at the very least directed, as it is not mandated by the PSC. (See Exhibit AE.)
  5. Take Judicial Notice: The Court overlooked the fact that the policy and decision to install digital utility meters on customer homes without the physical consent of the resident (which they could easily have done), was part of the policy the Defendants decision as Chief Executives of the Corporation, or at the very least, they directed. (See Exhibits O {Page 2}, D, N.)
  6. Take Judicial Notice: The Court overlooked the fact that the policy and decision to install digital utility meters without informing or warning the resident/customer of the presence of a pulsing, microwave emitting, digital utility meter on their home, was part of a policy that the Defendants created, as Chief Executives of the Corporation, or at the very least, they directed. (See Exhibits 0 {Page 2} D, N.)
  7. Take Judicial Notice: The Court overlooked the fact that the policy and decision to not have Central Hudson use analog utility meters taken off customer homes (that tested bad) to be refurbished by a certified  utility meter remanufacturer was part of the policy and decision the Defendants created or, at the very least directed. (See Exhibits AD, AJ, AK.)
  8. Take Judicial Notice: The Court overlooked the fact that the CEO and President of Central Hudson were negligent in keeping informed of what is going on in every Department, which is part of any CEO and President job description, as according to the Defendants they were purportedly unaware of a crisis situation created by their policies and, at the very least, two desperate customers (Plaintiff and his partner) which they had a Common Law duty to care for.
  9. Take Judicial Notice: The Court overlooked the fact that the decision to cut the Plaintiff’s electrical service by the Legal and Service Departments under the leadership and polices of the defendants, is criminal, knowing full well the Plaintiff's partner had just experienced a mini-stroke (TIA) and had just returned from the hospital and was recovering from the TIA.
  10. Take Judicial Notice: The Court overlooked the fact that all of the Plaintiff's demands could have been met very easily (during the tenor of the Defendants as CEO and President) by having a used analog utility meter, previously taken off of a customer home by Central Hudson and tested good by Central Hudson, could have been installed on the Plaintiff’s home according to the PSC, protecting the Plaintiff’s partner. However, because of the Defendants inhumane policies this was not done. (See Exhibit AE.)
  11. Take Judicial Notice: The Court overlooked all the facts in the Plaintiff’s OSJM of many peer-reviewed, scientific studies and the affidavit of an expert witness, that demonstrate that the rf  emissions of the digital utility meters are toxic and that they irradiated the Plaintiff,  his partner (Nicole Nevin) and many people in Central Hudson's customer base without their permission or knowledge, without compassion or concern - all under the color of  PSC rules and regulations,  organized and/or directed by the Defendants and their policies. (See Exhibits AB, AH, AH1, C, F, G1, G2, G3, I, J, K1, K2, Z.)
  12. Take Judicial Notice: The Court overlooked the fact that the Defendants have not supplied any peer-reviewed scientific studies done by medical or health professionals demonstrating the biological safety of these digital utility meters. The Court, by apparently not being cognizant of the absence of such peer-reviewed scientific studies done by medical and health professionals proving biological safety, misapprehended the deployment of digital transmitting utility meters being one big experiment on the Plaintiff, his partner and the Public, which is in violation of the Nuremberg Code and Treaty and a violation of the Plaintiff’s International Human Rights. (See Exhibit J.)
  13. Take Judicial Notice: The Court, in overlooking facts of the Defendants position within their Corporation, misapprehended that if a Corporate Officer '"authorizes, directs or in some meaningful sense activity participates in the wrongful conduct”, personal liability will attach even though the actions were taken by the Corporation. In this situation, there is joint liability. Personal liability also enters the equation when a Corporate Officer engages in Fraud.  In deciding liability, Courts will consider if an Officer participation in the improper conduct resulted from direct action or knowingly consenting to, or approving, the unlawful acts. (See Frances T. v. Village Green Owners Association.)

Based on the foregoing, and as the Court has stated, “the evidence must be construed in a light most favorable to the party opposing the Motion”, the Plaintiff prays that this Court exercise its discretion to grant the Motion to Reargue, pursuant to CPLR2221 and reconsider its recent Decision/Order, granting Summary Judgment, and allow this Case#16-1351 to proceed with full discovery rights for the Plaintiff, especially in light of protecting Plaintiff’s rights to due process, guaranteed in the 14th Amendment of the U.S. Constitution and the provision of U.S.C.42 Section 1983.  Plaintiff requests Findings of Fact and Conclusions of Law report with Court’s decision.  

Respectfully Submitted by Pro Se, Pro Per, Sui Juris

Stephen Phillip Romine

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    (Signature)                                                        (Date)

Sworn to before me this ____day of _____________, 2018                                

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Notary Public