Aery v MTA NY City Tr.
Annotate this CaseDecided on December 24, 2009
Civil Court of the City of New York, Queens County
Lalit M. Aery, Plaintiff,
against
MTA New York City Transit and CON EDISON CO. OF NY INC., Defendants.
SCQ 1868/08
Carmen R. Velasquez, J.
A bench trial was held before the Court, in this Small Claims case, on October 7, 2009 at which the Court had ample opportunity to observe the demeanor and credibility of the witnesses who testified. After carefully reviewing and assessing all of the evidence in this case, including the testimony of the witnesses and the exhibits introduced by the pro se plaintiff and by the defendants, the Court renders a verdict in favor of the plaintiff as against defendant New York City Transit Authority (sued herein as MTA New York City Transit) in the amount of $4,800.00 in accordance with the following decision.
On January 3, 2007, the plaintiff was served with a three day notice from the City of New York, Department of Environmental Protection, to repair the pipe through which water was conveyed to premises he owned located at 143-07 Hillside Avenue in Jamaica, New York. This pipe, which ran beneath Hillside Avenue, was leaking and water had begun to accumulate on the street in front of plaintiff's premises. The pipe had to be repaired by a licensed plumber who was required to obtain the necessary Department of Environmental Protection and Department of Transportation permits. The plaintiff hired Main Man Plumbing Corp. located in Brooklyn, New York. This plumber excavated the street and replaced the defective portion of the pipe at a cost of $4,800.00, which was paid by the plaintiff.
The plumber who repaired the pipe advised the plaintiff that the leak had been caused by electric current, as indicated in the repair bill which states: "After excavation we found that the water service was adversely affected by electrolysis. Con Ed was notified." The repair bill was introduced into evidence along with a letter from the plumber stating "that the leak was caused by electrolysis (an electric [*2]leak adversely affecting the water service pipe)", and advising the plaintiff to contact Con Edison for reimbursement and to solve the problem which could recur. The plumber also gave the plaintiff a section of the pipe for Con Edison to inspect. The section of the pipe, which was about two feet long and had a small round hole in it, was introduced into evidence at the trial and inspected by the Court.
George A. Anderson, a metallurgical engineer whose qualifications were conceded by the defendants, was called as an expert witness by the plaintiff. This witness had been employed by the Department of Environmental Protection where he was in charge of water main breaks. He had also investigated water line breaks in the Bronx which he found were caused by stray electric current from train lines operated by the Transit Authority. It was his expert opinion that stray electric current from the MTA subway system, which ran under Hillside Avenue, caused the leak in the water pipe leading to plaintiff's premises. This testimony was not rebutted by either of the witnesses called by the defendants, both of whom had conducted tests for stray electric current after the leak had been repaired and the street replaced. They testified only that they found no stray electric voltage in the area of the repaired leak at time of their inspections.
The witness called by defendant, Con Edison, acknowledged that he was not qualified to give an opinion as to the cause of the damage in the water pipe section that was introduced into evidence. However, Serge Philippeaux, the witness who testified on behalf of the Transit Authority, was a Corrosion Control Electrical Engineer and had been employed by the New York City Transit Authority for twenty six years. He stated that the pen hole in that section of pipe could have been caused by either stray electric current or corrosion. The section of pipe was inspected by the Court. There was no indication of any corrosion in the area of the pen hole which was a perfectly round, clean hole, about one eighth inch in diameter, that went completely through the metal pipe.
After assessing the condition of the section of pipe in evidence, the testimony of plaintiff's expert and the other evidence in this case, the Court finds that the leak in the water pipe leading to plaintiff's premises was attributable to electrolysis corrosion caused by stray electric current from the subway system operated by the New York City Transit Authority. According to plaintiff's expert, this stray current can be detected and controlled by the use of reasonable preventive measures. Therefore, whether on a theory of negligence, trespass, nuisance or strict liability, the [*3]plaintiff is entitled to be reimbursed by the defendant, New York City Transit Authority, for the cost of repairing the water pipe (see Lane v New York State Electric & Gas, Inc., 99 AD2d 597; cf. Gildon Holding Corp. v New York & Queens Transit Corp., 157 Misc. 644).
The contention of the New York City Transit Authority that notice is an essential element of plaintiff's cause of action is without merit. It is well settled that notice is not required to establish liability if the defendant created the condition, as the plaintiff contends in this action( 1 NY PJI3d 2:91, at 581 (2009); see also Peralta v Henriquez, 100 NY2d 139; Abato v County of Nassau, 65 AD3d 1268; Septoff v La Sheilda Maintenance Corp., 242 AD2d 618). Moreover, the evidence in this case established that the Transit Authority was aware that stray electric current from its transit system had caused damage to underground water pipes.
The Transit Authority also claims that it is entitled to governmental immunity for any damage caused by design defects which allowed the stray current to escape and damage the water pipe leading to plaintiff's premises. It relies upon the decision in Weiss v Fote (7 NY2d 579) as authority for this proposition. In that case, the Court of Appeals stated "that the traditional reliance on a jury verdict to assess fault and general tort liability is misplaced where a duly authorized planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury." As a result, the Court held that "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (Id.at 588-9).
In subsequent decisions, the appellate courts have made it clear that in order for the doctrine of qualified immunity set forth in Weiss v Fote to apply, there must be a duly executed plan which was evolved with adequate study and has a reasonable basis. When such a plan exists there is governmental immunity from liability provided that the study addressed the issue involved (see Affleck v County of Nassau, 96 NY2d 553; DeLeon v NY City Transit Auth., 305 AD2d 227; Stevens v NY City Transit Auth, 288 AD2d 460; Chase v NY City Transit Auth., 288 AD2d 422). In the absence of proof that the matter in issue was adequately considered and the policy adopted was reasonably based, the doctrine of qualified immunity does not apply (see Ernest v Red Cr. School Dist., 93 NY2d 664; Alexander v Eldred, 63 NY2d 460; Dobin v Town of Islip, 11 AD3d 577; Santiago v New York City Tr. [*4]Auth, 271 AD2d 675).
In the instant case, the defense relied solely upon the fact that no stray electric voltage was detected during inspections conducted by their employees after the damaged water pipe had been repaired and the street replaced by the plaintiff. The Transit Authority did not introduce evidence of a plan to detect and control stray electric current from the MTA subway lines. Therefore, the doctrine of qualified immunity does not apply and the New York City Transit Authority is liable for the damage caused to the water pipe leading to plaintiff's premises by stray electric current from the transit system which this defendant operates.
Accordingly, the complaint is dismissed as against defendant, Con Edison Co of NY Inc, and the plaintiff is awarded a judgment against the defendant, New York City Transit Authority (sued herein as MTA New York City Transit), for $4,800.00 plus costs and disbursements.
This constitutes the opinion, decision and order of the Court.
Dated: December 24, 2009
__________________________________
HON. CARMEN R. VELASQUEZ.
Judge, Civil Court
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