Fendelman v. Conrail

CourtNew York Villiage Court
Citation464 N.Y.S.2d 323,119 Misc.2d 302
PartiesBurton FENDELMAN, Plaintiff, v. CONRAIL, Defendant.
Decision Date16 March 1983

Page 323

464 N.Y.S.2d 323
119 Misc.2d 302
Burton FENDELMAN, Plaintiff,
CONRAIL, Defendant.
Village Court of Scarsdale,
Westchester County, Small Claims Part.
March 16, 1983.

Page 324

Burton M. Fendelman, pro se.

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


J. RADLEY HEROLD, Acting Village Justice.

The Plaintiff, Burton Fendelman, has brought suit in the Small Claims Part of this Court against the Defendant Conrail for: "breach of a contract of carriage of plaintiff passenger during the month of July." The plaintiff also claimed that the defendant "committed an aggravated tort against the person of the plaintiff wilfully and maliciously." The plaintiff seeks damages in the amount of $1,500.00 together with interest and costs. This action was tried before the Court 1 without a jury 2 on the evening of January 27th, 1983. The plaintiff, an attorney, chose to represent himself 3 at the trial of the action. The defendant Conrail was represented by counsel. The plaintiff testified in his own behalf and called as a witness one John Scherf of Scarsdale. The defendant called as a witness one Walter Zullig Jr. of New York City. The Court reserved decision and requested memoranda of fact and law from counsel.

The plaintiff testified that for the two week period between July 26th and August 6th, 1982 he travelled as a commuter from the Hartsdale Railroad Station 4 to

Page 325

Grand Central Terminal in New York City and returned during the week. His monthly commutation ticket during both July and August 5 cost $87.25. During this two week period the complaints of the plaintiff included the following: lateness of the trains, an insufficient number of cars to accommodate the riders resulting in overcrowding and "standing room only," lack of air conditioning and electricity, dirty toilets, noxious odors and lack of water facilities. The plaintiff as to these complaints had contemporaneously made a diary. On cross-examination the plaintiff stated that these "atrocious conditions" had existed for years and that he has been continuously dissatisfied. He has tried other modes to transportation, e.g. car pooling and a bus but cannot read or write on them and has become ill. The plaintiff also testified that he does do some work on the train. He contends that the contract which has been breached by the defendant is an implied contract to transport him from one point to another in a safe and comfortable manner. As to the claim of aggravated tort the plaintiff testified 6 that this was the apprehension he had as to the future lack of performance by the defendant based upon past lack of performance. The defendant sustained no loss of business and no physical injury as the result of the actions or inactions of the defendant.

John Scherf testified that he is employed in Manhattan and takes the train of the defendant to Manhattan from the Scarsdale Station. He described an occasion on January 27th, 1982 where the train was unbearably crowded, where the train would proceed and then stop without explanation and during which time a passenger became ill. When that occurred requests were made to and ignored by the conductor. Mr. Scherf later testified at a hearing in connection with this incident but has never been given a reason as to why the conductor acted as he did on the train.

The plaintiff asks for the maximum allowable on damages as to the aggravated tort in which he alleges that the defendant disregarded his health and safety and for a refund of his commutation ticket payment for the breach of contract of carriage.

Mr. Walter Zullig Jr. testified that he is General Counsel and Corporate Secretary of Metro-North and was such since the 1st of January, 1983. Prior to that he held positions in the legal department (and other departments) with the Metropolitan Transportation Authority. Through his testimony it was indicated that Metro-North was a subsidiary of the Metropolitan Transportation Authority and that under Section 1264 of the Public Authorities Law the Metropolitan Transportation Authority was performing a governmental function. The function of the Metropolitan Transportation Authority was said to be to promote and improve the service of the railroads. The Metropolitan Transportation Authority entered into a service agreement with the Harlem-Hudson

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Line and with the trustees of the bankrupt Penn Central Railroad. Penn Central operated the railroad under its contract with the Metropolitan Transportation Authority until March 31, 1976 when the assets of Penn Central were transferred to the defendant Conrail. The defendant has operated the railroad through 1982 and it is contended that Conrail had the same subsidiary relationship with the Metropolitan Transportation Authority that Metro-North supposedly now has. There was introduced into evidence various documents and agreements including a copy of a train ticket (with a disclaimer of responsibility on the rear) and a passenger tariff indicating the conditions of passage. It was further testified to that a substantial percentage of the cost of service to a commuter is subsidized by the state and federal (and in some instances County) governments.

Some general comments should first be made before any discussion of the points urged by counsel and the applicable law is discussed. This action although brought in the Small Claims Part of the Court occupied many hours of court time not only as to the trial itself but also as to the review of the memoranda of law, research and the writing of a decision. This, of course, is the proper function of any court. But the public perception of a Small Claims Court is entirely different--and understandably so. This case held some measure of importance in the public eye and the legal issues involved are important enough to justify the amount of time spent by all concerned. The average small claims matter, however, lasts only a short period of time (perhaps a half hour or less) and is immediately decided from the bench more often than not. Future small claims litigants should not, therefore, be deterred from bringing such claims by the appearance and actuality of complexity which this case obviously had.

The defendant argues that the claim must be dismissed as the plaintiff is not the real party at interest but rather part of an Association of individuals known as "Trainwatch 82." Section 1809 of the Uniform Justice Court Act provides that no action may be instituted in a Small Claims Part of a Justice Court by a corporation (other than a municipal corporation), public benefit corporation, school district, partnership, association or an assignee of a small claim. The defendant was given the opportunity at the trial to pursue this area but failed to adequately do so. The uncontradicted testimony of the plaintiff was that he was not a member of "Trainwatch 82". It clearly appears that this suit was brought in the individual name of the plaintiff for an alleged wrong or wrongs done to him as an individual and not to him as a representative of any association. Therefore, the evidence before this Court compels the Court to hold that the plaintiff was and is a proper party to initiate this action and the application of the defendant for a dismissal upon that ground is denied. 7

The defendant further urges that it is immune from suit under a theory of governmental immunity arrived at through its contractual arrangements with the Metropolitan Transportation Authority and the interpretation of various statutory provisions. The defendant in support of its theory called Mr. Zullig as a witness and his testimony has been substantially set forth above. It is on the basis of that testimony a reading of the statutes cited and of the various agreements and documents in evidence that the defendant urges that this Court conclude it has governmental immunity and is immune from the lawsuits brought here.

The Metropolitan Transportation Authority was created by an act of the New York State Legislature in 1965 and constituted a Public Benefit Corporation. It was legislatively declared that the purposes of the Authority shall be the continuance, further development and improvement of commuter transportation and other related services. It was further legislatively found and declared that the Authority shall be regarded as performing an essential governmental

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function in carrying out its purposes ( Public Authorities Law, section 1264).

The defendant argues that subd. 8 of Section 1266 of the Public Authorities Law together with the various agreements and documents in evidence immunizes it from suit. A careful reading of that subdivision, in the judgment of this Court, limits any such application of immunity--if immunity exists at all--to the Authority itself and does not extend it to the persons or entities with which it may deal. If the Legislature had wanted to extend the claimed "immunity" beyond the Authority it would and could have done so. It did not and that interpretation cannot be engrafted upon the statute by judicial fiat. Once having said that, it is clear to this Court that the provisions of the New York State Transportation Law dealing with common carriers are applicable to and binding upon the defendant. Nothing in the various agreements and documents in evidence persuades this court to the contrary. Even more significant is the fact that this claim is against Conrail and not against the Metropolitan Transportation Authority. The status of Conrail itself was set forth in its own enabling legislation. Conrail is a For-Profit corporation and shall not be an agency or instrumentality of the federal government (45 U.S.C. § 741(b)). Finally, nowhere in any state provision is it said...

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1 practice notes
  • Gandal v. Telemundo Group, Inc., Nos. 92-7036
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1994
    ...in the evidence for determining the amount of the damages. And that basis must be supplied by the plaintiff. Fendelman v. Conrail, 119 Misc.2d 302, 464 N.Y.S.2d 323, 329 (N.Y.Sup.Ct.1983) (citations omitted). From the record we cannot determine the value of the junk bond. Although Telemundo......
1 cases
  • Gandal v. Telemundo Group, Inc., Nos. 92-7036
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1994
    ...in the evidence for determining the amount of the damages. And that basis must be supplied by the plaintiff. Fendelman v. Conrail, 119 Misc.2d 302, 464 N.Y.S.2d 323, 329 (N.Y.Sup.Ct.1983) (citations omitted). From the record we cannot determine the value of the junk bond. Although Telemundo......

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