LIRR commuter Christopher Ebel is taking issue with the LIRR's...

LIRR commuter Christopher Ebel is taking issue with the LIRR's new refund policy which charges a $10 penalty on any refunded ticket. He says the fine print is typically obscured by other text when the ticket comes from a vending machine, as on the ticket seen here. (Feb. 24, 2011) Credit: Danielle Finkelstein

The Long Island Rail Road's new refund fee, which could charge more than a ticket's value, is unjust and, because of a printing problem, not enforceable, a Melville lawyer says.

Attorney Kenneth Mollins represents Christopher Ebel, 44, of Hewlett, in his dispute with the LIRR over a $10 surcharge for refunds on all tickets that Mollins says is being unlawfully enforced because the fine print on some tickets referencing the LIRR's new terms is impossible to read.

On Jan. 25, Ebel bought from a ticket-vending machine in Hewlett five one-way tickets between various stations, including Valley Stream, Far Rockaway and Jamaica.

Ebel said he was unaware that, as of last month, the tickets were valid for just 14 days, rather than the previous 90 days. Ebel said he was unable to use the tickets within the allotted two weeks.

When he called an LIRR customer service representative to inquire about returning the tickets for a full refund, he was informed of the newly enacted surcharge.

Ebel pointed out that on each ticket the fine print states it is subject to "conditions of use" and that notice is covered by a black box of text reading "One Way Peak" or "OW Off Peak."

"They can't hold you subject to something you can't read, especially when it's their fault you can't read it," said Mollins, who contacted LIRR officials to dispute the legality of the refund policy.

LIRR officials would not comment, but did make available a letter they sent to Mollins in response to Ebel's claim. In the letter, LIRR attorney Kevin McCaffrey said the LIRR regrets "the printing error" on some tickets and "will make every effort to correct it."

But, McCaffrey added in the letter, the LIRR "did more than the law required" to notify riders about the fee, including through public hearings, news releases and published materials.

Ronald Colombo, a Hofstra Law School associate professor specializing in contract law, said the case raises important issues about the legality of imposing terms in contracts that are not made clear to a purchaser and may not even be legible.

"For a term to be part of a contract, the parties to the contract have to be aware of it," Colombo said. "Here, it wasn't even in front of his eyes."

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