On October 2, 2026, the Fourth Department issued a decision in Agway Energy Servs., LLC v. Central Hudson Gas & Elec. Corp., 2026 NY Slip Op. 05621, staying, but not dismissing, a claim under the primary jurisdiction doctrine, explaining:
We conclude that the court did not err in determining that the primary jurisdiction doctrine applied to this case. The doctrine of primary jurisdiction is intended to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned, and to the extent that the matter before the court is within the agency’s specialized field, to make available to the court in reaching its judgment the agency’s views concerning not only the factual and technical issues involved but also the scope and meaning of the statute administered by the agency. While concurrent jurisdiction does exist, where there is an administrative agency which has the necessary expertise to dispose of an issue, in the exercise of discretion, resort to a judicial tribunal should be withheld pending resolution of the administrative proceeding.
Although there is no fixed formula governing the application of the doctrine to the facts of a particular case, the court must determine in each case whether the reasons for the doctrine are present and whether the purposes of the doctrine will be served by its application. Factors considered by courts in determining whether the doctrine applies include, (1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made.
It also bears noting that the doctrine of primary jurisdiction is applicable even if the agency has no power to award the damages sought in the court action. Further, once a court determines that the doctrine applies, it has discretion either: (1) to retain jurisdiction or (2) dismiss the case without prejudice. If the court retains jurisdiction, it merely stays the matter pending until the relevant administrative agency has rendered a determination on the issues within its primary jurisdiction.
Here, we conclude that the PSC has primary jurisdiction over plaintiff’s claims because the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of that agency. Specifically, the complaint raises numerous challenges to defendant’s implementation of new billing practices, which are alleged to have resulted in, among other things, erroneous bills being sent to plaintiff’s customers. Additionally, central to many of plaintiff’s claims are allegations that defendant failed to appropriately generate and transmit to plaintiff data pursuant to EDI protocols developed by the PSC. It has been held that control of the billing procedure, a process necessarily adjunct to the furnishing of utility service, fits neatly into the PSC’s supervisory role, and provides ample justification for commission oversight of billing envelope content. Inasmuch as the complaint raises issues concerning the propriety of defendant’s billing procedures—which necessarily implicate the utility’s tariff—and its handling of the PSC-governed EDI material, those issues fall within the jurisdiction and special expertise of the PSC.
Furthermore, the fact that a prior application to the PSC was made, and is still pending, involving many of the central issues raised in this action, also supports the court’s conclusion that the primary jurisdiction doctrine applies here. We also reject plaintiff’s contention that the primary jurisdiction doctrine does not apply here because some of the relief sought could not be awarded by the PSC. Rather, courts have determined that the doctrine of primary jurisdiction also applies to claims of fraud, deceptive business practices, or unjust enrichment, even if the agency has no power to award the damages a plaintiff seeks in this action.
Nevertheless, we agree with plaintiff that the court abused its discretion to the extent that it dismissed the complaint without prejudice instead of staying the action pending the PSC’s determination in the proceedings pending before it. In determining the appropriate disposition where the primary jurisdiction doctrine applies, a court in its discretion may choose to dismiss the case without prejudice—but only if the parties would not be unfairly disadvantaged. In making that determination, a court can look to the relief that the party is seeking. Here, plaintiff was primarily seeking monetary damages, not injunctive relief. Unlike a suit for injunctive relief from continuing conduct—a suit that could easily be reinstituted if and when the agency determined the questions at issue—a damages action for past conduct cannot be easily reinstated at a later time because such claims are subject to the Statute of Limitations. Indeed, as plaintiff contended in its opposition to defendant’s motion, by dismissing the complaint without prejudice instead of staying the action, the court would unfairly disadvantage plaintiff because, if plaintiff were to commence another action after the PSC issued its determination, the court might dismiss some of its claims on statute of limitations grounds (see generally CPLR 214 [2]. However, if the action is stayed, those claims, which were apparently filed within the statute of limitations, would not be dismissed on that basis. In light of that fact, and the fact that the court failed to expressly address the issue of the stay in its decision and order, we conclude that the court abused its discretion in dismissing the complaint and that it should have stayed the action pending the PSC’s determination.
(Internal quotations and citations omitted).
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