The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 41 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION On June 18, 2024, the Court held oral argument on the instant motion filed by Defendant Consolidated Edison Company of New York, Inc. (“Con Ed” or “Defendant”) seeking to dismiss the Second Amended Class Action Complaint (“SAC”) filed by Plaintiff Scotto Mycklebust and on behalf of other similarly situated individuals (“Plaintiffs”). NYSCEF Doc. No. 53 (6/18/24 Tr.). Based upon the papers filed in connection with this motion, oral argument, and for the reasons as set forth below, Defendant’s motion is GRANTED to the extent of staying this action pending the filing and determination of a complaint, if any, filed by Plaintiffs with the Public Service Commission (“PSC” or the “Commission”). Relevant Factual and Procedural History The present case arises from Con Ed’s imposition of a $100 “no-access” fee when it is unable to install new electric remote meters, or smart meters, in customer homes and businesses due to a customer’s failure to provide access. Smart meters allow Con Ed to make meter readings remotely, thereby obviating the need for in-person meter readings. In approximately 2017, Con Ed began installing smart meters to replace existing electric/gas meters as part of a large-scale initiative, sanctioned by the PSC. While customers may opt out of the installation of a smart meter, Con Ed maintains that it may charge a $100 no-access fee when Con Ed cannot access the service premises to install the smart meter. In this case, on or about February 27, 2023, Plaintiff Scotto Mycklebust, a Con Ed customer, received a letter from Con Ed stating that a nonparty subcontractor attempted to visit Plaintiff to install a smart meter. SAC at 18 (NYSCEF Doc. No. 25).1 Said letter notified Plaintiff Mycklebust that, due to Defendant’s subcontractor being unable to enter the premises, he would be charged a $100 no-access fee on his next utility bill. Id. Plaintiff Mycklebust states that he was not preemptively notified of the visit. Id. at 19. Plaintiff Mycklebust’s utility bill for the billing period of February 6 to March 8, 2023, included a $100 “adjustment” and stated, “[t]he Adjustments [sic] amount includes a no-access fee of $100.00 because we were not given access to install a smart meter.” Id. at 21. Plaintiff Mycklebust paid the bill in its entirety. Id. Plaintiffs commenced the present action by the filing of Summons and Complaint on June 2, 2023, seeking to launch a class action lawsuit against Con Ed in connection with the $100 adjustment, or no-access fee, imposed as a result of Con Ed being unable to install smart meters at Plaintiffs’ service premises. NYSCEF Doc. No. 1. On September 29, 2023, Plaintiff filed the SAC. NYSCEF Doc. No. 25.2 Plaintiffs allege that Defendant’s conduct is “unlawful and was imposed on tens of thousands (if not more) of other Con Ed customers,” and therefore Plaintiff Mycklebust brings “this case on his own behalf and on behalf of a Class of similarly affected consumers.” Id. at 22. Specifically, Plaintiffs allege that pursuant to Public Service Law §65(6), Con Ed may only charge installation fees for smart meters if the customer requests a new meter, and pursuant to Public Service Law §65(9), the imposition of a fee is limited to instances where a customer hinders the inspection or examination — not the installation — of a meter. Id. at
