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In re New York City Asbestos Litigation Andrucki

Supreme Court of New York, First Department

May 28, 2013

In re New York City Asbestos Litigation Mary Andrucki, etc., et al., Plaintiffs-Respondents,
v.
Aluminum Company of America, et al., Defendants, Port Authority of New York and New Jersey, Defendant-Appellant.

Segal McCambridge Singer & Mahoney, Ltd., New York (Christian H. Gannon of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), for respondents.

Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, JJ.

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 30, 2012, awarding plaintiffs damages, unanimously reversed, on the law, without costs, the judgment vacated, plaintiffs' motion for a default judgment against defendant Port Authority of New York and New Jersey denied, and defendant's motion to dismiss the complaint for lack of subject matter jurisdiction granted. The Clerk is directed to enter judgment accordingly.

In 1971 and 1972, plaintiffs' decedent, a sheet metal worker, worked on the construction of defendant Port Authority's World Trade Center, where he believed he was exposed to asbestos and inhaled fibers. He was diagnosed with malignant mesothelioma in or about April 2010. On October 4, 2010, he and his wife filed a notice of claim against defendant for the injuries he sustained, and on November 12, 2010, they served the complaint. On November 27, 2010, decedent died. Although plaintiffs' counsel should have been aware of the time requirements in the applicable statute, the service of the complaint was premature, resulting in a lack of subject matter jurisdiction over the Port Authority (see McKinney's Unconsolidated Laws of NY § 7107 [requiring service of a notice of claim at least 60 days before commencement of the action]; see e.g. Lyons v Port Auth. of N.Y. & N.J., 228 A.D.2d 250 [1st Dept 1996]; Ofulue v Port Auth. of N.Y. & N.J., 307 A.D.2d 258 [2d Dept 2003]; see also Campbell v City of New York, 4 N.Y.3d 200, 204 [2005]).

By concurrent legislation of the States of New York and New Jersey (Uncons Laws § 7101 et seq.; N.J. Stat Ann 32:1-157 et seq.), the Port Authority gave its consent to suit in actions or proceedings accruing after June 13, 1951 upon compliance with certain jurisdictional conditions precedent. The Port Authority grants such consent

"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, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced" (Uncons Laws § 7107).

We are, of course, required to apply New York law. However, we note that New Jersey courts have held "substantial compliance" with the notice requirements to be sufficient for instituting an action against the Port Authority. Thus, although both states' statutes are the same (Uncons Laws 7101 et seq.; N.J. Stat Ann 32:1-157 et seq.), New Jersey courts have liberally construed the notice requirement (see e.g. Zamel v Port of New York Auth., 56 N.J. 1, 264 A.2d 201 [1970] [finding substantial compliance based on the plaintiff's immediate reporting of the accident together with the parties' subsequent correspondence]; Atlantic Aviation Corp. v Port of New York Auth., 66 N.J.Super. 15, 168 A.2d 262 [1961] [finding substantial compliance where the Port Authority acknowledged the plaintiff's claim]; cf. Santiago v New York & New Jersey Port Auth., 429 N.J.Super. 150, 57 A.3d 54 [2012]; Port Auth. of New York and New Jersey v Airport Auto Services, Inc., 396 N.J.Super. 427, 934 A.2d 665 [2007] [finding that the invoices the counterclaimant submitted to the Port Authority did not constitute substantial compliance]). In New York, by contrast, compliance with the notice requirement is "mandatory" and "must be strictly construed" (Lyons, 228 A.D.2d at 251).

Plaintiffs argue that despite their initial failure to obtain subject matter jurisdiction over defendant, they nonetheless obtained subject matter jurisdiction through service of the amended complaint after the decedent's death. This argument is unavailing. The initial notice of claim specifically stated that it was for personal injury arising from the asbestos exposure and not for the decedent's death, which had yet to occur.

As plaintiffs correctly note, courts in this state have held, in considering notices of claim under General Municipal Law § 50-e, that notice of injury placed a municipality on notice of a plaintiff's subsequent death from that same injury (see e.g. Mingone v State of New York, 100 A.D.2d 897, 898 [2d Dept 1984]). However, these cases have no application to the Port Authority's suability statute. General Municipal Law § 50-e contains a "substantial compliance" provision, permitting courts to consider whether a plaintiff has substantially complied with the statute's terms; the Port Authority's suability statute, on the other hand, contains no substantial compliance provision (Uncons Laws §§ 7107, 7108; Port Auth. of N.Y. & N.J. v Barry, 15 Misc.3d 36, 38 [App Term, 2d Dept 2007]). Under these circumstances, plaintiffs should have served on the Port Authority a new notice of claim concerning the wrongful death and survivorship actions.

We further note that a limited exception to the notice provisions applies:

"[W]here a person entitled to make a claim dies and by reason of his death no notice of claim is filed or suit, action or proceeding commenced within the time specified in section seven hereof then any court in which such suit, action or proceeding may be brought may in its discretion grant leave to serve the notice of claim and to commence the suit, action or proceeding within a reasonable time but in any event within three years after the cause of action accrued. Application for such leave must be made upon an affidavit showing the particular facts which caused the delay and shall be accompanied by a copy of the proposed notice of claim if such notice has not been served, and such application shall be made only upon notice to the port authority" (Uncons Laws § 7108).

Accordingly, because plaintiffs' cause of action accrued in November 2010, plaintiffs may, as of the date of this decision, still move for leave to serve a new notice of claim and commence a new suit against the Port Authority.


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