LINETSKIY v. NEW YORK CITY TRANSIT AUTHORITY (2003)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated August 23, 2002, which granted the defendant's motion to dismiss the complaint on the ground that it is barred by Workers' Compensation Law § 11.

ORDERED that the order is affirmed, with costs.

After the plaintiff Alex Linetskiy, an employee of the New York City Transit Authority (hereinafter the TA), incurred injuries to his eye in a work-related accident, he and his wife commenced the instant action, alleging that the TA violated the Federal Employers' Liability Act (hereinafter FELA) (45 USC §§ 51-60) by failing to provide him with proper protective goggles.   The TA served an answer alleging the exclusivity of the Workers' Compensation Law as an affirmative defense and then moved to dismiss the action based upon that affirmative defense.   The plaintiffs, in opposition, contended that FELA preempts State law such as the Workers' Compensation Law (see Matter of Fabregas v. Staten Is. Rapid Tr. Ry. Co., 7 A.D.2d 948, 182 N.Y.S.2d 188).

The Supreme Court granted the motion, finding that FELA did not apply to the TA on the ground that the TA “is not a common carrier engaged in interstate commerce.”   We affirm.

45 USC § 51 provides, in pertinent part:

“Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories * * * shall be liable in damages to any person suffering injury while he [or she] is employed by such carrier in such commerce.”

“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce;  or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Chapter be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Chapter.”

FELA is applicable to certain commuter railroads such as the Metro North Railroad which operates across State lines (see Longo v. Metro-North Commuter R. R., 275 A.D.2d 238, 240, 712 N.Y.S.2d 531;  cf. Finter v. Metro N. R.R., 291 A.D.2d 531, 737 N.Y.S.2d 866) and the Long Island Rail Road which operates solely in the State of New York (see Greene v. Long Island R.R. Co., 280 F.3d 224, cert. denied 538 U.S. 1031, 123 S.Ct. 2073, 155 L.Ed.2d 1060;  Grasso v. Long Is. R.R., 306 A.D.2d 378, 760 N.Y.S.2d 864).

The appellants contend that the Long Island Rail Road is indistinguishable from the TA on the ground that the Long Island Rail Road operates exclusively intrastate.   However, unlike the TA, the Long Island Rail Road is classified as a railroad which is involved in interstate commerce (see Long Island R.R. Co. v. Department of Labor, 256 N.Y. 498, 177 N.E. 17), and the transportation of freight (see People ex rel. Sibley v. Gresser, 205 N.Y. 24, 26, 98 N.E. 205) in interstate commerce (see Matter of Fabregas v. Staten Is. Rapid Tr. Ry., supra;  see also Long Island R.R. Co. v. International Assn. of Machinists & Aerospace Workers, 709 F.Supp. 376, 378, mod. on other grounds 874 F.2d 901, cert. denied 493 U.S. 1042, 110 S.Ct. 836, 107 L.Ed.2d 831).   The New York City transit system, on the other hand, carries only passengers in the City of New York.

There is a distinction between railroads which are covered by FELA and urban rapid transit systems which are not covered by FELA (see Chicago Transit Auth. v. Flohr, 570 F.2d 1305;  Felton v. Southeastern Pennsylvania Transp. Auth., 952 F.2d 59, 62;  Yang v. New York City Tr. Auth., 2002 WL 31399119, 2002 U.S. Dist LEXIS 20223 [E.D.N.Y. Oct. 24, 2002], affd. 71 Fed.Appx. 90).   The TA is not covered by FELA (see Yang v. New York City Tr. Auth., supra ).

Accordingly, the action was properly dismissed on the ground that it is barred by Workers' Compensation Law § 11.