On August 2 the New York State Public Service Commission (NYSPSC) announced that it is requiring Consolidated Edison Company of New York to make significant changes to how it brings so-called “replevin” actions to recover the meters used to measure energy consumption upon termination of services. Unlike other forms of legal recovery, replevin seeks the return of the actual thing itself, as opposed to monetary damages.

“The NYSPSC directive is good news for consumers. Con Edison’s past practices didn’t do enough to protect consumers, or inform them of their full legal rights. We hope that this decision will make the courthouse conferences Con Ed conducts when it files seizure actions more consumer-friendly and fair, and will better protect low-income and disabled customers,” said Danielle Tarantolo, Co-director of NYLAG’s Special Litigation Unit. “We hope the NYSPSC continues to scrutinize Con Ed to make sure these new changes go far enough.”

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Good news for NYC consumers: Con Ed will be required to dramatically improve transparency and accountability regarding how it brings so-called “replevin” actions to recover meters used to measure energy consumption upon termination of services

In November 2016, NYLAG joined the Public Utility Law Project of New York’s call to the NYSPSC to review Con Edison’s debt collection practices. NYLAG’s concerns are based on the first-hand experience of NYLAG attorneys in the course of representing clients in replevin actions and advising other consumers who contacted NYLAG about Con Ed. Once alerted to the problem, NYLAG conducted an investigation into Con Ed’s replevin practices, based on interviews with defendants in these proceedings, review of relevant documents, and other sources. “We saw consumers being taken advantage of over and over in these conferences,” said Kevin Thomas, an attorney in NYLAG’s Consumer Protection Unit. “We became concerned that Con Ed, and the courts, should be doing more to enforce the rules.”

Among its findings, NYLAG specifically objected to Con Ed’s practice of holding “voluntary” meetings in civil courthouse, which creates an illusion for defendants that their meetings with the Con Ed representatives constitute formal legal proceedings in which their due process rights will be respected, when this is not, in fact, the case.

NYLAG also found Con Ed’s practices to be inconsistent with the Home Energy Fair Practices Act (HEFPA), and in violation of the New York Civil Procedure Law and Rules. In particular, HEFPA has rules to protect customers whose health or safety would be jeopardized by lack of power, and requirements to offer deferred payment plans, including concessions for customers showing evidence of financial hardship. But Con Ed’s conferences never informed customers of about the protections they were entitled to.

The new NYSPSC ruling is a strong response to these concerns. It requires Con Ed to dramatically improve transparency and accountability in its replevin actions in compliance both with civil law and the requirements regarding service termination. This includes offering a fair and equitable deferred payment plan in an accessible manner, providing special procedural protections for customers with special needs, such as medical emergencies, customers who are elderly, blind or disabled, or recipients of public assistance, and following certain procedures during cold weather periods prior to service termination. It will also require Con Ed to significantly reform its procedures for holding voluntary conferences, and to report to the NYSPSC on an ongoing basis about its replevin practices.

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