Opinion
10-19-2017
Charles FOSTER, Plaintiff–Appellant, v. PORT AUTHORITY OF NEW YORK & NEW JERSEY, Defendant–Respondent.
Hofmann & Schweitzer, New York (Timothy F. Schweitzer of Counsel), for appellant. Karla Denalli, New York, for respondent.
Hofmann & Schweitzer, New York (Timothy F. Schweitzer of Counsel), for appellant.
Karla Denalli, New York, for respondent.
Defendant is not entitled to summary judgment dismissing the FELA claim. In its capacity as the operator of an interstate railway transit system, defendant may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA if the alleged negligent act is committed in connection with defendant's interstate railway commerce operations (see Zuckerberg v. Port Auth. of N.Y. & N.J., 75 A.D.3d 503, 505, 906 N.Y.S.2d 282 [2d Dept.2010] ). It cannot be said as a matter of law that the alleged negligent act here—namely, defendant's decision to continue plaintiff's employment as a machinist despite plaintiff's disability—is divorced from defendant's railway operations. In addition, there is evidence that defendant had significant supervisory control over plaintiff's employment, because defendant's doctors evaluated plaintiff's physical condition and determined the restrictions to be applied to plaintiff's job duties; such supervisory control may be sufficient to bring plaintiff within the ambit of FELA (see Smith v. Metropolitan Transp. Auth., 226 A.D.2d 168, 641 N.Y.S.2d 8 [1st Dept.1996], lv. denied 89 N.Y.2d 803, 653 N.Y.S.2d 280, 675 N.E.2d 1233 [1996], cert. denied 520 U.S. 1186, 117 S.Ct. 1470, 137 L.Ed.2d 683 [1997] ).
As to any statute of limitations argument, we note that defendant did not plead that defense. In any event the last injury plaintiff attributed to defendant's negligence manifested around June 2005, and the complaint was filed in April 2008, which is within the three-year statute of limitations (see Anderson v. BNSF Ry., 380 Mont. 319, 337, 354 P.3d 1248 [2015], cert. denied – –– U.S. ––––, 136 S.Ct. 1493, 194 L.Ed.2d 586 [2016] ).
Because FELA "wholly preempts State-law remedies for railway employees injured in the course of employment" ( Ganci v. Port Auth. Trans–Hudson Corp., 258 A.D.2d 386, 686 N.Y.S.2d 9 [1st Dept.1999], appeal dismissed 93 N.Y.2d 965, 694 N.Y.S.2d 635, 716 N.E.2d 700 [1999] ), and because the standards applied when deciding a FELA claim are similar to those applied in common-law negligence actions, but "are substantially relaxed" ( Hyatt v. Metro–North Commuter R.R., 16 A.D.3d 218, 218, 792 N.Y.S.2d 391 [1st Dept.2005] ), plaintiff's duplicative common-law negligence claim is not reinstated.
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.