Opinion
June 12, 1978
In an action for injunctive relief and to recover damages for the alleged violation of established billing procedures and the wrongful termination of electric service, plaintiffs appeal from an order of the Supreme Court, Westchester County, dated May 20, 1977, which granted defendant Consolidated Edison Company's (Con Ed) cross motion to dismiss the complaint. Order modified by deleting all language after the word "granted" and substituting therefor the following: "only as to that part of the complaint which seeks injunctive relief and cross motion is otherwise denied." As so modified, order affirmed, without costs or disbursements. Upon the argument of this appeal, plaintiffs acknowledged that they were not entitled to injunctive relief. Defendant Con Ed likewise admitted that the complaint was sufficient to state a cause of action for damages. Accordingly, while the complaint should be sustained insofar as it seeks damages, the allegations with regard to injunctive relief should be deleted. We do not pass on the question of whether, under the facts of this case, a class action is proper. That is a question to be passed on in the first instance by Special Term (see CPLR art 9). Latham, J.P., Damiani, Shapiro and Margett, JJ., concur.