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Nash v. The Port Authority of New York and New Jersey

Supreme Court of New York, First Department

January 8, 2013

Linda P. Nash, Plaintiff-Appellant,
v.
The Port Authority of New York and New Jersey, Defendant-Respondent.

Louis A. Mangone, New York, for appellant.

Weil, Gotshal & Manges, LLP, New York (Howard B. Comet of counsel), for respondent.

Friedman, J.P., Acosta, Abdus-Salaam, Manzanet-Daniels, Román, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 15, 2012, which granted defendant's motion to vacate the judgment, same court and Justice, entered January 15, 2010, in plaintiff's favor, affirmed, without costs.

In Matter of World Trade Ctr. Bombing Litig. (17 N.Y.3d 428, 455 [2011]), the Court of Appeals held that the doctrine of governmental immunity insulated the Port Authority from tortious liability for injuries claimed in connection with the 1993 World Trade Center bombing. That case involved litigation by hundreds of plaintiffs who sued the Port Authority for injuries incurred in the terrorist bombing. Most of the plaintiffs were represented by counsel for a steering committee appointed by a trial court, but some plaintiffs, including Nash, had separate counsel. The cases were all consolidated for proceedings to determine the Port Authority's alleged liability, and a joint liability trial of the consolidated cases, including the Nash case, resulted in a single verdict finding the Port Authority liable for negligence.

This Court affirmed the trial court's order denying the Port Authority's motion to set aside the verdict, rejecting the Port Authority's governmental immunity argument (Nash v Port Auth. of N.Y. and N.J., 51 A.D.3d 337, 344 [1st Dept 2008]). The cases were then separated for individual damages proceedings in the trial court. After a damages judgment was entered in favor of Nash, the Port Authority appealed, and by order dated June 2, 2011, we affirmed "insofar as appealed from as limited by the briefs, awarding postjudgment interest at the fixed rate of nine percent per annum" (Nash v Port Auth. of N.Y. and N.J., 85 A.D.3d 414 [1st Dept 2011). Defendant did not seek leave to appeal from that order.

After a damages judgment was entered in favor of a different plaintiff, Ruiz, defendant sought leave to appeal to the Court of Appeals from the judgment of Supreme Court pursuant to CPLR 5602(a)(1)(ii), and the Court granted leave. The appeal brought up for review both the judgment in the Ruiz action and our prior order as to Ruiz (17 N.Y.3d at 441). The Court of Appeals reversed the judgment entered in favor of plaintiff Ruiz, as well as our order which had affirmed the trial court's denial of the Port Authority's motion to set aside the liability verdict.

Since the judgment in plaintiff's favor was based on an order that had been reversed, the trial court properly vacated the judgment (see CPLR 5015[a][5]; McMahon v City of New York, 105 A.D.2d 101 [1st Dept 1984]). The dissent is correct that in McMahon, the order that was vacated was subject to appeal, while the order here (the Nash judgment) was no longer subject to appeal. Despite this difference in procedural posture of the two cases, we believe that the underlying reasoning expressed in McMahon applies here as well. As in McMahon, since the final judgment in this case holds the defendant liable for "damages in a case in which, as a matter of law as established by the [ Matter of World Trade Ctr. Bombing Litig ] decision [ ], the [defendant] should not be liable at all" (105 A.D.2d at 103), the judgment should be vacated. Regarding the Court of Appeals's statement in Matter of World Trade Ctr. Bombing Litig. that the Nash action is beyond the scope of that appeal (17 N.Y.3d at 441 n 7), this is simply an acknowledgment that while Nash was given permission to argue the appeal before the Court, her action was not being addressed by the Court. It does not render the motion court's action in vacating Nash's judgment improper. The motion court did not abuse its discretion by vacating a final judgment where the Court of Appeals had reversed "the interlocutory judgment of liability on which the final judgment was based" (McMahon at 102).

All concur except Acosta and Manzanet-Daniels, JJ. who dissent in a memorandum by Manzanet-Daniels, J. as follows:

MANZANET-DANIELS, J. (dissenting).

The order of this Court, entered June 2, 2011, affirming the judgment entered by the trial court awarding plaintiff $4, 463, 856.89, plus interest, stands as a final judgment in plaintiff's favor which may not now be disturbed (85 A.D.3d 414 [2011]). I would accordingly find that the motion court erred in vacating plaintiff's judgment on the basis that she was bound by the Court of Appeals' determination in Matter of World Trade Ctr. Bombing Litig. (17 N.Y.3d 428, 455 [2011]). The Court of Appeals itself stated that the Nash action was "beyond the scope of the [ Ruiz ] appeal, " inasmuch as "[a] judgment in the Nash action was recently affirmed by the Appellate Division" (id. at 441 n7).

An explanation of the complex procedural history of this case is in order. In 1993, Nash commenced a personal injury action against the Port Authority of New York and New Jersey in the Supreme Court, New York County. Meanwhile, hundreds of other actions were commenced against the Port Authority in connection with the 1993 bombing of the World Trade Center. These actions, including the Nash action, were consolidated into a single action for the purpose of determining liability (see Matter of World Trade Ctr. Bombing Litig., 3 Misc.3d 440, 442 [Sup Ct, NY County 2004]). Most of the plaintiffs were represented during the liability phase by counsel for a steering committee appointed by the trial court (see id.; 17 N.Y.3d at 439). Several plaintiffs, including Nash, retained separate counsel to represent them in the liability phase, as well as in subsequent damages trials.

On October 26, 2005, the jury in World Trade Ctr. Bombing Litig. returned a verdict as to liability, finding that the Port Authority's failure to maintain a secure and safe premises, in light of known dangers, was a substantial factor in causing the plaintiffs' injuries. The Port Authority moved to set aside the verdict or, in the alternative, for a new trial (see World Trade Ctr. Bombing Litig., 2007 NY Slip Op 34467U [Sup Ct NY County 2007, Figueroa, J.]). The motion was denied and the Port Authority appealed. This Court affirmed by order entered April 29, 2008 (51 A.D.3d 337 [2008]). The Port Authority did not seek leave to appeal from the order, and instead permitted the parties to try their respective damages claims.

In early 2009, the damages trial in Nash resulted in a verdict, dated March 9, 2009, in favor of Nash and against the Port Authority in the amount of $4, 463, 856.89, plus 9% interest. This Court affirmed by order entered June 2, 2011 (see Nash, 85 A.D.3d 414 [2011]). The Port Authority did not seek leave to appeal to the Court of Appeals from the order, which of course would have brought up for review not only the issue ...


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