The opinion of the court was delivered by: GOETTEL
Defendant Port Authority of New York and New Jersey ("Port Authority") seeks to have plaintiff's complaint dismissed for failure to comply with the statutory conditions precedent governing the institution of suit against it, for failure to comply with any other possible statute of limitations upon which the plaintiff could rely, and on the further grounds that the claims asserted are barred by the doctrine of laches inasmuch as they have not been timely instituted and plaintiff has unreasonably delayed. Defendant State of New Jersey also seeks to have the plaintiff's complaint dismissed pursuant to Fed.R.Civ.P. 12(b) on the grounds that the Court lacks both personal and subject matter jurisdiction over that defendant and for failure to state a claim upon which relief can be granted. There has been no opposition to the latter motion, and clearly, since, inter alia, plaintiff was not employed by the State, that motion should be granted.
Tillman Lee instituted this action against the Port Authority, the State of New York,* and the State of New Jersey, alleging jurisdiction under 28 U.S.C. §§ 1331(a), 1361, and 2201-2202 and 5 U.S.C. § 701 et seq. Plaintiff was employed by the defendant Port Authority as a structural maintainer beginning on March 20, 1968. He alleges that his discharge on March 7, 1970, while on disability leave on account of injuries received in the course of his employment, was unreasonable and without due process, depriving him of his civil rights and resulting in loss of income. He seeks reinstatement as well as compensatory and punitive damages.
Plaintiff admits that he was incarcerated during this same time; he was in the Brooklyn House of Detention Center from January 7, 1970 until April 13-14, 1970, when he became a fugitive in flight from the jurisdiction of the New York State Department of Corrections. He remained a fugitive until June 1977, when he was returned to Riker's Island Detention Center. In October 1977, plaintiff was released from custody but did not commence this action until August 1979.
The issues to be considered are:
(1) whether the plaintiff's complaint should be dismissed for failure to comply with the one-year period and sixty-day notice of claim conditions precedent of the Port Authority's suability statute;
(2) whether the complaint should be dismissed for untimeliness under either N.Y.Civ.Prac.Law & R. § 214(2) or N.Y.Civ.Prac.Law & R. § 217;
(3) whether the time specified in any applicable statute of limitations should be extended by a period of disability on account of imprisonment under N.Y.Civ.Prac.Law & R. § 208; and
(4) the effect of the plaintiff's status as a fugitive from justice.
Inasmuch as plaintiff's suit was not instituted until approximately nine and one-half years after the cause of action accrued, he has not met the one-year condition precedent governing suits against the Port Authority. Under the Port Authority's suability statute, N.Y.Unconsol.Laws §§ 7101 et seq. (McKinney 1979), such suits are consented to by the states of New York and New Jersey. Section 7107 provides:
The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money . . ., a notice of claim shall have been served upon the port authority . . . at least sixty days before such suit, action or proceeding is commenced.
Judicial decisions have held that suits not brought against the Port Authority within one year must be dismissed. In Trippe v. Port of New York Authority, 14 N.Y.2d 119, 249 N.Y.S.2d 409, 198 N.E.2d 585 (1964), which involved an alleged unlawful taking of private property in violation of constitutional guarantees, the New York Court of Appeals affirmed the status of the Port Authority as a direct agency of the state and unequivocally held that the one-year limitation was applicable to all actions against the Port Authority. Federal cases have reached the same result. In Rao v. Port of New York Authority, 122 F. Supp. 595 (E.D.N.Y.1954), aff'd, 222 F.2d 362 (2d Cir. 1955), an accident case, the court held that the bi-state suability statute was clear and unambiguous and that statutes waiving sovereign immunity must be strictly construed even though suit was commenced only eight days after the one-year period had expired. Since the lateness in filing suit was much greater in the instant case than in Rao eight years instead of eight days the policy of strict application is even more clearly justified.
The plaintiff's claim is further weakened by the fact that the one-year suability provision is not a statute of limitations but rather a condition precedent. Bolzano v. Port of New York Authority, 232 N.Y.S.2d 776 (Sup.Ct.1962), aff'd, 23 A.D.2d 573, 256 N.Y.S.2d 495 (2d Dep't 1965). Conditions precedent were distinguished from statutes of limitation in Kaplan v. Uribe, 286 A.D. 156, 158, 142 N.Y.S.2d 41, 42 (1st Dep't 1955):
The liability and the remedy are created by and within the same statute, and the limitations of the remedy are, therefore, to be treated as limitations of the right. That limitation is an integral part of the right to enforce such an action, and is, therefore, unaffected by ...