Dominianni v. Consolidated Rail Corp.

• Decision Date: 29 September 1981
• Citation: 443 N.Y.S.2d 334,110 Misc.2d 929
• Parties: Emil DOMINIANNI, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: New York Town Court

Page 334

443 N.Y.S.2d 334

110 Misc.2d 929

Emil DOMINIANNI, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

Harrison Town Court, Westchester County.

Sept. 29, 1981.

Sanford Goldman, New York City, for plaintiff.

Michael J. Siris, New York City, for defendant.

DECISION

HARVEY J. FRIED, Town Justice.

This action by a Conrail commuter for breach of his contract of carriage, by reason of Conrail furnishing persistently late, overcrowded, unheated, odorous and filthy trains, requires at the outset a determination of the nature of the rights and obligations to which his commutation ticket entitled him.

I

THE STANDARD OF SERVICE TO WHICH A PASSENGER IS ENTITLED:

The common law view, well settled as early as Willis v. Long Island R.R. Co., 34 N.Y. 670, 683 (1866), was that a passenger was entitled to be transported "safely and properly" within "suitable and reasonable accommodations". The Railroad Law and Public Service Law, adopted in 1910 (consolidating earlier enactments), thus were declaratory of the common law in mandating that common carriers furnish,

"such service and facilities as shall be safe and adequate and in all respects just and reasonable" (Public Service Law, Sec. 26)

and, that a railroad

"shall start and run its cars ... at regular times ... and shall furnish sufficient accommodations for the transportation of all passengers" ... (Railroad Corp. Law, Sec. 54).

Enactment of the Transportation Law, in 1970, merely highlighted the durability of the common law standard recognized by the Court of Appeals a century earlier in Willis, supra. Thus, Transportation Law, Sec. 96 provides that every carrier,

"shall furnish ... such service and facilities as shall be safe and adequate and in all respects just and reasonable".

Accordingly, the Court holds that the language of Transportation Law, Sec. 96 sets forth the standard of service to which a passenger is entitled ... regardless of whether that standard be deemed common law or statutory. The application of such standard to the facts of any particular case is, of course, an accustomed task of courts and juries (see, e. g., Davis v. New York Central R. Co., 163 Misc. 710, 298 N.Y.S. 44 (App. Term, 1st Dept., 1937)).

II APPLICABILITY OF STATUTORY AND COMMON LAW STANDARDS TO CONRAIL

Conrail contends that it is exempt from the statutory standard of "just and reasonable" service because it operates the commuter lines under a contract with the Metropolitan Transportation Authority (MTA). This MTA connection is claimed to be dispositive on two separate grounds. First, on the theory that the Transportation Law (and its predecessors) does not apply to MTA because MTA, being a public benefit corporation performing an "essential governmental function" (Public Authorities Law, Secs. 1263, 1264), is neither a "railroad corporation" nor a "common carrier" as those terms are defined by Transportation Law, Secs. 2 (6) and (7). Second, because, Public Authorities Law, Section 1266 (8) specifically exempts MTA from the regulatory authority, under the Transportation Law, of the Department of Transportation ("DOT") and its predecessor, the Public Service Commission (Long Island Railroad Corp. v. Public Service Commission, 30 A.D.2d 409, 292 N.Y.S.2d 167 (2d Dept. 1968) affd. 23 N.Y.2d 852, 298 N.Y.S.2d 65, 245 N.E.2d 799; Metropolitan Transportation Authority v. Village of Tuckahoe, 67 Misc.2d 895, 325 N.Y.S.2d 718 (SC West., 1971)).

Conrail concludes therefore that the standard of performance due a passenger under the Transportation Law has no bearing on Conrail's operations and that the sole lawful measures of its performance are its own tariff schedules which, paradoxically, were filed under the self-same Transportation Law which Conrail claims to be irrelevant when relied upon by plaintiff.

The difficulties with Conrail's position are several.

1. MTA, it is true, is a governmental agency and neither a "common carrier" nor a "railroad corporation" (Publ.Auth.Law, Secs. 1263, 1264, Transp.Law, Secs. 2 (6) and (7)). Conrail, however, is not a governmental agency; it is--or at least was intended to be--a for-profit corporation; it is a common carrier; and it is subject to State regulation (45 U.S.C., Sec. 741(b); Transp.Law, Secs. 2 (7), 95).

Unlike MTA, then, Conrail is within the statutory definition of enterprises which are made subject to the Transportation Law and is not explicitly immunized by the Public Authorities Law from DOT regulation. Conrail's immunity, if any, therefore must be found in the language of its contract with MTA and MTA's broad authority in contracting, to do,

"all things it deems necessary, convenient or desirable, to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property operated by or under contract, lease or other arrangement ..." (Publ.Auth.Law, Sec. 1266(8))

The MTA-Conrail "contract, lease or other arrangement", however, never was offered at trial nor was any reference made to pertinent terms thereof. Hence, on this record, there is no basis for finding that Conrail shares MTA's claimed immunity from the standards and regulations generally applicable to common carriers and railroad corporations in this State.

2. Quite apart from the issue of whether Conrail shares MTA's immunity from regulation by DOT under the Transportation Law, there remains the issue of whether Conrail is subject to the standards of performance imposed by the statute--and by common law.

The Transportation Law operates upon two distinct levels. On the one, DOT is empowered to regulate carriers and adopt administrative standards (e. g., Transportation Law, Article 2); on the other, the Legislature, itself has enacted its own standards and requirements. Those legislative standards, moreover, are self-executing as evidenced by Transportation Law, Sec. 111 which specifically authorizes suit by any person damaged by a carrier's failure,

"to do any act, matter or thing required to be done, either by law or by order of the commissioner," (emphasis added).

Accordingly, even if the exemption of Public Authorities Law Sec. 1266(8) were applicable to Conrail, the immunity gained would extend only to those provisions of the Transportation Law empowering DOT to regulate the carrier; application to Conrail of the balance of the statute would remain unimpaired. By way of obvious example, DOT cannot exercise its power, under Transp.Law, Sec. 99, to review Conrail's tariff schedules because Publ.Auth.Law, Sec. 1266(8) specifically exempts MTA from DOT's regulatory authority. Nonetheless, Conrail continues to file those schedules with DOT in obedience to the legislative command to so do, contained in Transp.Law, Sec. 98 (indeed, as noted below, Conrail relies in this action upon the contents of those filed tariff schedules as a partial defense, e. g. Affid. of Theodore O. Haas, sworn to May 12, 1981).

In sum, although the Public Authorities Law may authorize the overriding of DOT regulation, Conrail, a common carrier under both federal and state law, remains subject to so much of the Transportation Law as constitutes self-executing legislative commands.

As noted earlier, one such command is the provision of Sec. 96, that

"Every corporation, person or common carrier ... shall furnish ... such service and facilities as shall be safe and adequate and in all respects just and reasonable".

It is, moreover, a command enforceable at the suit of any person, in accordance with Sec. 111.

Long Island Railroad Co. v. PSC, and Metrop. Transp. Authority v. Village of Tuckahoe, supra, are entirely consistent with the conclusions set forth above. In those cases, the specific issues before the courts were whether the Public Service Commission, in one action, and a municipal building inspector, in the other, had jurisdiction over the decision of MTA to construct pedestrial footbridges and an overpass. The courts held that the Commission (the predecessor of DOT) and the Village lacked jurisdiction over these decisions because Publ.Auth.Law, Sec. 1266(8) specifically authorized MTA to override "local laws, resolutions, ordinances, rules and regulations of a municipality" and, that the PSC's jurisdiction "shall not extend to (MTA) in the exercise of any of its powers ...".

Both cases therefore dealt with specifically prohibited administrative efforts to regulate MTA's operations. Nothing in this instant case, however, calls upon the Court to regulate, oversee or interfere with MTA or Conrail's operations. The issue simply put is whether or not Conrail performed its contract of carriage with plaintiff in accordance with statutory and common law standards--and no rule of law has been called to the Court's attention which immunizes Conrail from its breaches of contract.

This case is similar to Warshak v. Eastern Air Lines, Inc., 191 Misc. 503, 78 N.Y.S.2d 413 (1948) where defendant claimed plaintiff's action for breach of the carrier's contract of carriage intruded upon the regulatory authority of the Civil Aeronautics Board. The Court held, at p. 504, 78 N.Y.S.2d 413:

"But this ignores the fact that the plaintiff has come into a common law forum because of the alleged breach by a carrier of its contract to carry--a cause of action which time and again has been recognized as being within the jurisdiction of such a forum, in an action against a railroad company, for instance, notwithstanding the similar provisions of the Interstate Commerce Act (U.S.Code, Tit. 49, § 1 et seq.) and the jurisdiction of the Interstate Commerce Commission. Cf. Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867; Hewitt v. N.Y., N.H. & H.R. Co., ...