Linda P. Nash, Appellant,v.The Port Authority of New York and New Jersey, Respondent.BriefN.Y.October 9, 2013New York County Clerk’s Index No. 129074/93 Court of Appeals STATE OF NEW YORK LINDA P. NASH, Plaintiff-Appellant, against THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Respondent. >> >> To Be Argued By: Louis A. Mangone Time Requested: 10 Minutes REPLY BRIEF FOR PLAINTIFF-APPELLANT LOUIS A. MANGONE, ESQ. Attorney for Plaintiff-Appellant 505 Greenwich Street, Suite 10B C/O J. Mangone New York, New York 10013 Telephone: 646-704-0029 Facsimile: 954-484-5095 email: lmangone@comcast.net Date Completed: July 17, 2013 TABLE OF CONTENTS REPLY BRIEF FOR PLAINTIFF-APPELLANT LINDA P. NASH . 1 Preliminary Statement . .1 A. B. C. What it Was That Actually Happened Here . The June 2, 2011, Decision and Order That Affirmed Ms Nash's Final Judgment "Terminated" and "Superseded" The Appellate Division's Interim Division and Order of April 29, 2008, in Ms. Nash's Case. The Appellate Division's Superseding Decision and Order of June 2, 2011, Was Never "Reversed" "Modified" or "Vacated," Nor Could it Ever Be: Accordingly, CPLR 5015(a) (5) Did Not Have Even Colorable Applicability . . .1 . 5 8 ARGUMENT I Because the Port Authority Refused to Seek to Appeal the Appellate Division's June 2, 2011, Decision and Order, Neither the lAS Court Nor the Appellate Division Had Jurisdiction to Hear the Port Authority's September 26, 2011, Motion to Vacate Ms. Nash's Affirmed Final Judgment, Let Alone Grant the Port Authority That, or Any Other, Relief as to it . .12 i II THE PORT AUTHORITY CANNOT BE RELIEVED FROM THE WELL KNOWN CONSEQUENCES OF IS CALCULATED AND DELIBERATE STRATEGIC DECISION TO NOT SEEK TO APPEAL THE JUNE 2, 2011, DECISION AND ORDER OF THE APPELLATE DIVISION TO THIS COURT AND ABANDON ITS APPEAL OF MS. NASH'S AFFIRMED FINAL JUDGMENT .....21 III CPLR 5015 HAD NO APPLICATION TO MS. NASH'S AFFIRMED FINAL JUDGMENT 26 CONCLUSION . . . . . . . . . .. . . .. . . . . . . . . . . 29 ii TABLE OF AUTHORITIES Federal Cases Ackerman v. United States, 340 U.S. 193, 198, 71 S. Ct. 95 L. Ed. 207 (1950) ..... 209, . . . . . . . . . . .. 20 New York State Cases Aho v. Rhodes, 39 N.Y.2d 241, 248, 347 N.E.2d 647, 383 N.TY.S.2d 285, 289 (1976) 8 Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 364 N.E.2d 835, 396 N.Y.S.2d 170, 172 (1977) .. Attorney General of the State of New York. V. Firetog, 94 N.Y.2d 477, 727 N.E.2d 1220, 706 N.Y.S.2d 666, (2000) .... . . .4 . . 21 Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803 (1976) 5 Dayon v. Downe Communications, Inc., 42 A.D.2d 889, 347 N.Y.S.2d 459 (1st Dep't 1973) 8 Dole v. Dow Chemical Company, 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972) .... . .. 17, fn. 11 Flanagan v. Bd. of Ed. Commack U. Free Sch., 47 N.Y.2d 613, 393 N.E.2d 991, 419 N.Y.S.2d 917 (1979). . . . . . . . . 6 iii . . 11, fn. 9 Gager v. White, 53 N.Y.2d 475, 425 N.E.2d 851, 53 N.Y.S.2d 463 (1981) 7 Hecht v. City of New York, 60 N.Y.2d 57, 454 N.E.2d 527, 467 N.Y.S.2d 187 (1983). . . . 22, fn. 13 In the Matter of World Trade Center Bombing Litigation, Steering Committee, et al, respondents, v. Port Authority of New York and New Jersey, 17 N.Y.3d 428, 957 N.E.2d 733, 933 N.Y.S.164 (2011) ..... 2, fn. 2 In the Matter of World Trade Center Bombing Litigation, Steering Committee, et aI, respondents, v. Port Authority of New York and New Jersey, 17 N.Y.3d 856, 954 N.E.2d 1177, 930 N.Y.S.2d 551 (2011) Kirkpatrick Home for Childless Women v. Kenyon, 269 App. Div. 179, 594 N.Y.S. 504 (lst Dep't 1924) ..... 20 James v. Shave, 62 N.Y.2d 712, 714 465 N.E.2d 39, 476 N.Y.S.2d 532 (1984) 16 Linda P. Nash, Plaintiff-Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant, In re World Trade Center Bombing Litigation, Steering Committee, Plaintiff- Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant, 51 A.d.2d 337, 856 N.Y.S.2d 583 (lst Dep't 2008) ... 4, fn. 5 Nash v. Port Authority, 102 A.D.3d 420,959 N.Y.S.2d 4 (lst Dep't 2013) 1 Nash v. Port Auth. Of N.Y. & N.J., 85 A.D.3d 414, 923 N.Y.S.2d 840 (lst Dep't. 2011) ... 2 fn. 3 Nash v. Port Authority, 102 A.D.3d 420,959 N.Y.S.2d 4 (lst Dep't 2013) ... 1, passim iv People v. Favor, 82 N.Y.2d 254, 624 N.E.2d 631, 604 N.Y.S.2d 495, 498 (1993) . . . . . . . . . . . . . .7 Schieck v. Donohue, 81 App. Div. 168, 80 N. Y. S 739 (1st Dep 't 1903) Sears Roebuck & Co. v 9Ave. 31-St. Corp., 274 N. Y. 388, 9 N.E.2d 20 (1937) ..... 14 5, passim Slater v. American Mineral Spirits Company, 33 N.Y.2d 443, 310 N.E.2d 300, 354 N.Y.S.2d 620 (1974) . et al., . . . .17 Cases From Other Jurisdictions McCleary v. Wally's World, Inc., 2007 VT 140, 945 A.2d 841, 846 (2007) 23 New York Statutes CPLR 5015 CPLR 5522 Other Authorities . 1, passim .23, fn. 12 Siegel,Practice Commentary C5513:1 (1995), McKinney's Cons. Laws of New York CPLR 5513 .... 13,fn. 12 v COURT OF APPEALS OF THE STATE OF NEW YORK --------------------------------------x Index No. 129074/93 (S. Ct. N. Y. Co.) LINDA P. NASH, Plaintiff-Appellant, -against- THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Respondent. ---------------------------------------x REPLY BRIEF OF PLAINTIFF- APPELLANT LINDA P. NASH Ms. Nash submits this Reply Brief on her appeal from the Decision and Order of the Appellate Division, First Department dated January 8, 2013 1 • Preliminary Statement A. Whatit Was That Actua11y Happened Here What actually happened here bears repeating in light of the Answering Brief of the Port Authority ("PA Br."), that does its best to ignore the events that led to this appeal. As this Court is aware, on June 2, 2011, months before September 22, 2011, when this Court rendered its decision on I Nash v. Port Authority, 102 A.D.3d 420, 959 N.Y.S.2d 4 (pt Dep't 2013). the Ruiz appeal 2 , the Appellate Division, on the only appeal the Port Authority ever took from Ms. Nash's Final Judgment, "unanimously affirmed u Ms. Nash's Final Judgment "insofar as appealed from as limited by the Briefs, awarding post- judgment interest at the fixed rate of nine percent per annumu3 • (AI46. ) (Unless otherwise stated, all emphasis has been supplied.) In its current Brief the Port Authority makes a single summary reference to that Decision, in which notes only that it exists; but it entirely ignores its content. 4 The Port Authority's time to seek leave to appeal the Appellate Division's June 2, 2011, Decision and Order to this Court expired at midnight, July 12, 2011, without the Port Authority having sought such leave. In her main Brief (at 21), Ms. Nash noted that on its 2 In the Matter of World Trade Center Bombing Litigation, Steering Committee, et aI, respondents, v. Port Authoritv of New York and New Jersey, 17 N.Y.3d 428, 441, 957 N.E.2d 733, 933 N.Y.S2d 164, 172 (September 22, 2011). 3 Nash v. Port Authority of New York and New Jersey, 85 A.D.3d 414, 923 N.Y.S.2d 840 (lst Dept. 2011). 4 The complete single reference in the Port Authority's Brief to the Appellate Division's June 3, 2011, Decision and Order, is: "The Appellate Division affirmed the judgment on June 2, 2011. A. 146-47." (PA Br. at 5.) 2 appeal to the Appellate Division, the Port Authority declared in is Notice of Appeal (A445) that it was appealing from "each and every part of" her Judgment, including the finding in it that it was liable to her on her claim. She also noted that when she sought to limit that appeal to the issue of the assessment of interest, the Port Authority insisted to the Appellate Division (A239), and then to this Court (Al17-118), that it "may raise, on [its appeal of Ms. Nash's final Judgment to the Appellate Division] any adverse order or ruling affecting the judgment" "without limitation". In its Brief the Port Authority makes only a single reference to these events, claiming, contrary to the position it asserted to the Appellate Division and to this Court, that "The Port Authority appealed Nash's judgment to the Appellate Division to review an issue related to the calculation of damages." (PA Br. at 5.) In fact, and as the Port Authority knew, because it did exactly the same thing, and had exactly the same relief before, when it filed its Notice of Appeal from "from each and every part" of Ms. Nash's final Judgment, and later when it represented to the Appellate Division (A239) to this Court (Al17-118), that, even though the Appellate Division had, in 3 its April 29, 2008, Intermediate Decisions, denied its claim that it had a governmental function defense to Ms. Nash's claim for the second time 6 , the Appellate Division could have "entertain [ed] ... the same issue" on its appeal from Ms. Nash's Final Judgment. Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 364 N.E.2d 835, 396 N.Y.S.2d 170, 172 (1977). Thus, on January 15, 2010, when it appealed from "each and every part of" Ms. Nash's Final Judgment, and insistently declared to this Court and the Appellate Division that it was free to again "raise ... any adverse order or ruling affecting the judgment" "without limitation," including that it had a governmental immunity from liability to Ms. Nash on her claim, the Port Authority was following a course it had taken before. It knew from experience that the Appellate 5 Linda P. Nash, Plaintiff-Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant, In re World Trade Center Bombino Litigation, Steering Committee, Plaintiff-Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant, 51 A.d.2d 337, 856 N.Y.S.2d 583 (1st Dep' t 2008). 6 As the Appellate Division noted in its April 29, 2008 Interim Decision, even though, on a "prior appeal (13 A. D. 2d 66, 784 N.Y.S.2d 869) [it had] reviewed and rejected" the Port Authority's claim of immunity, because the Port Authority had raised the issue again on its appeal from the jury's verdict, where it was not and could not have been an issue, it "once again ... register[ed its] agreement with" Justice Sklar's conclusion, that it affirmed on the earlier appeal, that the Port Authority did not have such an immunity. (51 A.D.2d 337,856 N.Y.S.2d 583,587 (2008).) 4 Division could review that claim of error again on that appeal. At 12:01 a.m., July 13, 2011, the Appellate Division's June 2, 2011, Decision and order, with its finding that the Port Authority had waived and abandoned all claims of error in Ms. Nash's Final Judgment except as to the assessment of interest, i.e., that the Port Authority had waived any defense to the merits of Ms. Nash's claim against it, became res judicata between her and the Port Authority; i.e., a final and conclusive determination of all "questions of law and fact necessarily involved in the dispute between" Ms. Nash and the Port Authority (Sears, supra), including "all claims which could have been litigated had the" Port Authority sought an appeal from the June 2, 2011, Decision." (Bray v. Cox, 38 N.Y.2d 350, 355, 379 N.Y.S.2d 803, 807 (1976). Thereafter, neither this Court nor any other had any jurisdiction (or discretion or "inherent power") to "destroy or diminish" it, even if it "had been erroneous." ( Sears Roebuck & Co. v 9Ave. 31-St. C~, 274 N.Y. 388, 400-401, 9 N.E.2d 20 (1937). B. The June 2, 2011, Decision and Order That Affirmed Ms Nash's Final Judgment "Terminated" and "Superseded" The Appellate Division's Interim Division and Order of April 29, 2008, in Ms. Nash's Case When this Court rendered its decision in Ruiz on 5 September 22, 2011, and reversed the Interim Decision and Order the Appellate Division of April 29, 2008 "as to Ruiz,u from which Decision it expressly excluded Ms. Nash's Final Judgment, that, it noted, "was recently affirmed by the Appellate Division," 7 (1) not only was Ms. Nash's case in its entirety finally ended, and no longer "in the pipeline,u but (2) there were no defenses whatsoever pending by the Port Authority to the merits Ms. Nash's claim against it, governmental immunity or otherwise: it was as if any such defenses, governmental immunity or otherwise included, had not been pleaded. Flanagan v. Bd. of Ed. Commack U. Free Sch., 47 N.Y.2d 613, 393 N.E.2d 991, 419 N.Y.S.2d 917 (1979): the Appellate Division committed reversable error when it granted the defendant summary judgment and dismissed the complaint against it on the basis of a defense, there a statutory defense, that had been waived. In her main Brief (POINT I. B., pp. 66-68, to which she respectfully refers the Court) Ms. Nash pointed out that there was such a waiver, and that it was one of the reasons the Decision appealed from was erroneous and had to be 7 In the Matter of World Trade Center Bombing Litigation, Steering Committee, et al., supra, 17 N.Y.3d at 441, fn. 7, 933 N.Y.S2d at 172, fn.7: "The Nash action, however, is beyond the scope of this [the Ruizl appeal. A judgment on the Nash action was recently affirmed by the Appellate Division." 6 reversed. In its Answering Brief, the Port Authority ignores the issue, that is, ignores what the lAS Court and the Appellate Division actually did when they vacated Ms. Nash's affirmed Final Judgment on the basis of a defense to her claim that was no longer in her case. Instead, it claims not that Ms. Nash's only argument on this appeal "is that the Supreme Court did not have jurisdiction to vacate her judgment after the judgment became final and unappealable." (PA Br. at 12.) That is, to say the least, an inaccurate statement even of Ms. Nash's contentions as to the effect of the Port Authority's refusal to seek an appeal of the Appellate Division's superseding Decision and Order of June 2, 2011. As this Court made clear in Gager v. White,S in order for a later decision in one case (here, Ruiz) to be applied to another case (here, Nash), (1) the other case (here, Ms. Nash's case) had to be pending, i.e., "in the direct appeal pipeline" (People v. Favor, 82 N.Y.2d 254, 262, 624 N.E.2d 631, 604 N.Y.S.2d 495, 498 (1993)), at the time the decision in the later case, here, Ruiz, was rendered, and (2) the issue on which the later decision was rendered, here that the Port Authority had no liability to Mr. Ruiz because it had a governmental function immunity to his claim, also had to 853 N.Y.2d 475,425 N.E.2d 851,53 N.Y.S.2d 463 (1981) .. 7 still be in the other case, i.e., also still had be "in the direct appeal pipeline," when the later decision was rendered, and not earlier removed, by waiver or otherwise, at the time the later decision was rendered. (Gager v. White, supra, 53 N.Y.2d at 448, 475, 53 N.Y.S.2d at 465-466.) On September 22, 2011, when this Court rendered its decision on the Ruiz appeal, neither of those conditions existed in Ms. Nash's case. Well before then the Port Authority had seen to it that Ms. Nash's case had ended and no longer was "in the direct appeal pipeline," and had waived and abandoned any defense to the merits of her claim, including that it had a governmental function immunity defense to it. C. The Appellate Division's Superseding Decision and Order of June 2, 2011, Was Never "Reversed" "Modified" or "Vacated," Nor Could it Ever Be: Accordingly, CPLR 5015(a) (5) Did Not Have Even Colorable Applicability to Ms. Nash's Affirmed Final Judgment The Appellate Division's June 2, 2011, Decision and Order that affirmed Ms. Nash's Final Judgment "terminated" and "superseded" that Court's Interim Decision and Order of April 29, 2008, as it had previously been Entered in and applied to her case. Dayon v. Downe Communications, Inc., 42 A.D.2d 889, 347 N.Y.S.2d 459 (1st Dep't 1973). As this Court held in Aho v. Rhodes, 39 N.Y.2d 241, 248, 347 N.E.2d 647, 8 383 N.TY.S.2d 285, 289 (1976), citing Dayon: "The Appellate Division held, correctly in our view, that any right of direct appeal from the [Appellate Division's interim] order terminated with the entry of the [final ] judgment (Dayon v. Downe Communications, Inc . ... ). Appellate review of that intermediate order was thereafter available only on appeal from the final judgment on the ground [that it] necessarily affected" the Final Judgment. Since the Appellate Division's June 2, 2011, Decision and Order "terminated" and "superceded" its April 29, 2009, Interim Decision as Entered in, and applied to Ms. Nash's case, the April 29, 2008, Interim Decision in and as it applied to Ms. Nash's claim could be reviewed only "on [and within the framework of an] appeal from [Ms. Nash's affirmed] final judgment." And, of course, it only could have been reviewed in the context of the particular facts of Ms. Nash's individual claim. When the Port Authority decided to not seek to appeal the Appellate Division's June 2, 2011, Decision and Order that affirmed Ms. Nash/s Final Judgment, and thereby irrevocably waived and abandoned any right to have Ms. Nash's affirmed Final Judgment reviewed, it also irrevocably waived and abandoned any right to any review, let alone a reversal, of the Appellate Division's April 29, 2009, Interim Decision and Order as it was Entered in, and applied to Ms. Nash's claim. 9 Ms. Nash's affirmed Final Judgment, that she was entitled to enforce on and after July 13, 2011, when the Port Authority's time to seek leave to appeal the Appellate Division's June 2, 2011 Order expired without it having sought such leave, was "based" (CPLR 5015(a) (5)) on the superseding June 2, 2011, Decision and Order of Appellate Division that affirmed it. That Order was never "reversed" "modified" or "vacated," nor could it ever be. Sears, supra, 274 N.Y. at 400-401, and the other cases cited by Ms. Nash in POINT I (pp. 53-79) of her main Brief. Accordingly, CPLR 5015(a) (5) did not have, could not have had, even colorable applicability to Ms. Nash's affirmed Final Judgment. Nevertheless, (1) despite the fact it refused to seek leave to appeal the Appellate Division's superseding Decision and Order of June 2, 2011, and allowed it to become a final and conclusive determination of all "questions of law and fact necessarily involved in the dispute between" Ms. Nash and the Port Authority, and (2) despite representing to this Court at the oral argument on the Ruiz appeal on August 24, 2011, that if this Court were to reverse the Appellate Division's Interim Order of April 29, 2008 on that appeal, any such reversal would not "unravel" final determinations previously made in other cases, which included Ms. Nash's case, that were no longer "in the pipeline," if and when 10 there were such a reversal, and (3) despite the fact that this Court, in the other Decision it rendered under the caption of the Ruiz appeal, on September 22, 2011 9 , denied the Port Authority's motion for a stay the enforcement of Ms. Nash's affirmed Final Judgment, and held that it could not, not even in light of it having reversed the Appellate Division's April 29, 2008, Interim Decision "as to Ruiz," grant the Port Authority any relief as to it, on September 26, 2011, the Port Authority moved, by an ex parte Order to Show Cause in the lAS Court, for an order vacating Ms. Nash's affirmed Final Judgment as a matter of discretion pursuant to CPLR 5015 and "the inherent power" of the court, i.e., "unraveling" Ms. Nash's affirmed Final Judgment, on the basis of this Court's decision on the Ruiz appeal, and for a stay of its enforcement. (A17-18.) The lAS court then (1) resurrected and reinstated an affirmative defense to Ms. Nash's claim that the Port Authority had previously irrevocably waived and abandoned months before this Court rendered its decision on the Ruiz 9 In the Matter of World Trade Center Bombing Litigation, Steering Committee, et aI, respondents, v. Port Authority of New York and New Jersey, 17 N.Y.3d 856, 954 N.E.2d 1177, 930 N.Y.S.2d 551 (2011). 11 appeal 10 , namely that it was not liable to her on the merits of her claim by virtue of a governmental function immunity, and then, (2) having resurrected that previously waived and abandoned affirmative defense, summarily vacated Ms. Nash's previously affirmed Final Judgment, granted the motion and dismissed her Complaint. (A16. ) In the Decision appealed from, the Appellate Division, by a vote of 3-2, affirmed, although on a completely different ground and rationale than that on which the lAS court vacated Ms. Nash's Affirmed Final Judgment, and that actually was contradictory to the reasoning of the lAS Court in the Decision it affirmed. Ms. Nash en took this appeal. ARGUMENT I BECAUSE THE PORT AUTHORITY REFUSED TO SEEK TO APPEAL THE APPELLATE DIVISION'S JUNE 2, 2011, DECISION AND ORDER, NEITHER THE lAS COURT NOR THE APPELLATE DIVISION HAD JURISDICTION TO HEAR THE PORT AUTHORITY'S SEPTEMBER 26, 2011, MOTION TO VACATE MS. NASH'S AFFIRMED FINAL JUDGMENT, LET ALONE GRANT THE PORT AUTHORITY THAT, OR ANY OTHER, RELIEF AS TO IT In her main Brief Ms. Nash cited many decisions of this 10 In the Matter of World Trade Center Bombino Litigation, Steering Committee, et aI, respondents, v. Port Authority of New York and New Jersey, 17 N.Y.3d 428, 957 N.E.2d 733, 933 N.Y.S2d 164 (September 22, 2011). 12 Court that without exception establish the controlling and applicable rule of law that where a party fails, in this case refuses for strategic reasons, to appeal an order or Judgment in which "a court of competent jurisdiction determine[d] conclusively the questions of law and fact necessarily involved in the dispute between the parties to the litigation," ... neither this Court nor any other can "destroy or diminish the legal effect of [it] It remains as between the parties a conclusive determination of questions of both law and fact there litigated" (Sears, supra, 274 N.Y. at 400-401), even though "This Court might have reversed [the earlier final Order] if [it] had been brought here for review ... " (Id., 274 N.Y. at 401.) As this Court then stressed in Sears "it must be remembered that we ... could not change the conclusive effect of the earlier decisions of the intermediate appellate court which had not been brought up here for review." (Ibid.) The Port Authority's Answering Brief on this appeal does not cite, as it did not cite in the courts below, a single case or authority that holds (1) that a Final Judgment Entered by a court of competent jurisdiction, that (2) was affirmed on appeal by a court of competent jurisdiction, (3) from which Order of affirmance the losing party refused to seek any further appeal, (4) was or could be later vacated on 13 the basis of a decision in another case, rendered after the appeals as to the first case had been finally concluded, let alone (5) on a ground that the losing party below had earlier waived and abandoned. Instead, it cited Schieck v. Donohue, 81 App. Div. 168, 80 N. Y. S 739 (1st Dep 't 1903). (PA Br. 15.) In Schieck the plaintiff sued to foreclose on a mortgage and, although Donahue full tender of the amount paid, to which the plaintiff demurred, foreclosure was granted by Special Term and a interlocutory judgment of foreclosure was Entered. Donahue appealed the judgment to the Appellate Division, and it reversed. Donahue then moved in Supreme Court to vacate the interlocutory judgment since it had been reversed by the Appellate Division. For some reason that motion was denied. On the appeal from that denial, which is the decision cited, the Appellate Division directed that the interlocutory Judgment against Donohue, that it had previously reversed, be vacated. Here, of course, on June 2, 2011, on the only appeal the Port Authority took from Ms. Nash's Final Judgment, the Judgment was affirmed, by a Decision and Order that 14 "superseded" and "terminated" the Appellate Division's Interim Decision and Order of April 29, 2008,in Ms. Nash's case. The Port Authority then made a deliberate strategic decision to not appeal that affirmance to this Court, just as it decided in January 15, 2010, before it was affirmed, to appeal Ms. Nash's Final Judgment to the Appellate Division and not to this Court. To the extent Schieck has relevance on this appeal it supports Ms. Nash. Further, and as noted above, the Port Authority does not refer to, or cite any authority to support the other proposition it urges in this appeal, albeit sub silentio, namely that an affirmative defense to Ms. Nash's claim on the merits, that it had previously and irrevocably waived and abandoned, could later be reinstated and resurrected, and a previously affirmed and unappealed Final Judgment be vacated, pursuant to CPLR 5015 (a) (5) or otherwise Instead, the Port Authority contends that its deliberate refusal to seek leave to appeal the Appellate Division's June 2, 2011, affirmance of Ms. Nash's Final Judgment is without consequence here, and those well settled rules do not apply here because, it says, the authorities cited by Ms. Nash that 15 set forth those well, and uniformly, established rules of law "all concern CPLR 2221 motions ["Motion[s] affecting prior order[s]"], rather than CPLR 5015 motions." (PA Br. 22-23.) The difference between motions under CPLR 2221 and CPLR 5015 is procedural, not substantive. Motions under CPLR 2221 are made prior to the entry of Judgment and motions to vacate judgments, "if available at all" are made after pursuant to CPLR 5015. (James v. Shave, 62 N.Y.2d 712, 714 465 N.E.2d 39, 476 N.Y.S.2d 532 (1984)). While there are fewer grounds for relief available under CPLR 5015, the standards for granting relief are not different. The Port Authority's position here is (1) that an order of "a court of competent jurisdiction [that] determines conclusively the questions of law and fact necessarily involved in the dispute between the parties to the litigation," that (2) was "a conclusive determination of questions o£ both law and fact there litigated ... and it is not appealed," and thus (3) the conclusive legal effect of it cannot be "destroy[ed] or diminish[ed]" under CPLR 2221 prior to the entry of a judgment (Sears, supra, and the other cases cited in Ms. Nash's main Brief), can be overturned under CPLR 16 5015 when a judgment is Entered on that order. It is an absurd contention, and is directly contrary to the law. See, Slater v. American Mineral Spirits, 33 N.Y. 443, 447, 354 N.Y.S.2d 630, 623 (1974). In Slater, there was such a final determination, via Orders entered in 1971, that dismissed third party complaints for contribution. Judgments were not Entered on those Orders, and the plaintiffs did not appeal from them. Later, and while the cases in which the third party complaints had been dismissed were still pending for other purposes, those plaintiffs sought to overturn the 1971 Orders by filing new third party complaints for contribution on the basis of Dole v. DOW,ll decided in 1972. In this Court the Slater plaintiffs argued that the dismissals of their original third party complaints for contribution, made pursuant to the 1971 Orders, were not res judicata. Thus, they said, because Dole v. Dow effected a change in the law, their new third party complaints were proper, and the lower courts erred when they dismissed the new third party complaints on the basis of the conclusive 11 Dole v. Dow Chemical Company, 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972). 17 effect of prior unappealed orders. Rejecting those contentions this Court affirmed the dismissals of newly filed third party complaints on res judicata grounds, holding that "when no appeal was taken from the" orders dismissing the original third party complaints "the claims [in them] were in final judicial repose." (33 N.Y.2d at 447, 354 N.Y.S.2d at 623.) This Court went on to hold, specifically rejecting the proposition the Port Authority puts forth here, namely that a final disposition of a case than cannot be reversed under CPLR 2221, when no judgment has been entered on it, somehow can be reversed when a Judgment is Entered on it: "Had final judgments been entered on the 1971 orders of dismissal as a further procedural refinement [as Ms. Nash's had, and been affirmed on appeal, as Ms. Nash's had], there would have been little question but what the doctrine of res judicata would have precluded consideration of the second-round third-party complaints. The 1971 dispositions were on the merits of the third-party claims [as was the Appellate Division's June 2, 2011 Affirmance of Ms. Nash's final Judgment], and no appeal having been taken those dispositions became final" and could not be disturbed. (Ibid.) In other words, this Court said, the entry of a judgment on an Order that was "a conclusive determination of questions of both law and fact there litigated," and that was res 18 judicata and could not be disturbed even though a judgment has not been Entered on it, is even more clearly so, and even more clearly cannot be disturbed, when a Judgment is Entered on it. That is the settled law and it is exactly the opposite of what the Port Authority contends it is. Had the plaintiffs in Slater filed a motion under CPLR 2221 to renew the motion that resulted in the dismissals of their original third-party complaints rather than file new ones the same rules of law applied, and exactly the same result would have ensued. CPLR 5015, and in particular CPLR 5015(a) (5), did not repeal the strict rules that requires the filing of a notice of appeal in order to seek relief from a final judgment (other than, of course on procured by fraud, etc.), or to relieve a party that does not appeal from the consequences of its decision. 12 Nor was it enacted to allow the kind of 12 "The time in which to appeal or move to appeal if leave is necessary is one of the most rigid in all of procedure. Its passing without the proper step being taken forfeits the appeal and puts an end to the matter, often just as effectively as the doctrine of res judicata would do. In fact, the passing of the period is deemed to go to the jurisdiction of the court -- to its subject matter jurisdiction ... " Siegel, Practice Commentary C5513:1 (1995), McKinney's Consolidated Laws of New York CPLR 5513. 19 games the Port Authority is playing in this case. Indeed, such conduct was flatly condemned by the Appellate Division, First Department itself. In Kirkpatrick Home for Childless Women v. Kenyon, supra, the Appellate Division dealt with exactly the conduct the Port Authority engaged in here, and it found the injustice that would result could not be allowed. "After the trial court has decided that the plaintiff could not recover on the written contract, instead of moving to amend the complaint and for a new trial, the plaintiff appealed to the Appellate Division from the judgment entered upon the verdict. It took the chance of reversing the judgment, and having failed in that, it cannot go back to the Special Term and procure an order vacating the judgment of the Appellate Division, amend its complaint and secure a new trial upon an entirely different theory ... "The mere statement of such a proposition demonstrates its error, and illustrates the necessity of holding that the Special Term did not have jurisdiction to grant the order appealed from " (204 N.Y.S. at 595-596.) The Decision of the Appellate Division of January 8, 2013, that affirmed the decision of the lAS court, that it had no jurisdiction to make, and that resurrected an affirmative defense to Ms. Nash's claim that the Port Authority had previously waived and, on that affirmative 20 defense, summarily vacated Ms. Nash's affirmed Final Judgment, not only was directly contrary to the well settled and controlling decisions of this Court set forth in Ms. Nash's main Brief and here, it also was directly contrary to its own in precedent in Kirkpatrick Home for Childless Women, supra. II THE PORT AUTHORITY CANNOT BE RELIEVED FROM THE WELL KNOWN CONSEQUENCES OF IS CALCULATED AND DELIBERATE STRATEGIC DECISION TO NOT SEEK TO APPEAL THE JUNE 2, 2011, DECISION AND ORDER OF THE APPELLATE DIVISION TO THIS COURT AND ABANDON ITS APPEAL OF MS. NASH'S AFFIRMED FINAL JUDGMENT As Ms. Nash noted in her main Brief (POINT I. B., pp. 66-68), the Port Authority cannot have any relief from consequences of its deliberate, strategic decision to abandon Ms. Nash's appeal and all objections to her Affirmed Final Judgment. In addition to the cases cited on this point in Ms. Nash's main Brief, see Attorney General of the State of New York. V. Firetog, 94 N.Y.2d 477, 484, 727 N.E.2d 1220, 706 N.Y.S.2d 666, 667 (2000): once the Attorney General "embarked on a strategic litigation" course he was precluded 21 from changing his position by disowning it. See, too, Ackerman v. United States, 340 U.S. 193, 198, 71 S. Ct. 209, 95 L. Ed. 207 (1950). In Ackerman the Supreme Court affirming the denial by the courts below of a motion that denied a motion brought by the defendant to overturn a final judgment he did not appeal, pursuant to the provisions of Fed. R. Civ. P. 60 (b) (6), that allows for overturning final judgments for "any other reason justifying relief from the operation of the judgment". In Ackerman the Supreme Court held: "Petitioner cannot be relieved of such a choice [there, like here, "a considered choice not to appeal"] because hindsight seems to indicate to him that his decision was probably wrong ... There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." 13 13 Cf, Hecht v. City of New York, 60 N.Y.2d 57, 61, 454 N.E.2d 527, 467 N.Y.S.2d 187 (1983), a case involving CPLR 5522. There, a judgment had been entered in favor of a personal injury plaintiff against the City and another defendant, a garage, on a sidewalk defect. Only the City appealed. On the City's appeal the Appellate Division held that the defect was "trivial," such that there was no negligence. It overturned the Judgment against the City, and then went on to also vacate the Judgment Entered against the non-appealing defendant. This Court affirmed the Appellate Division's reversal of the Judgment against the City. But, 22 In Ackerman the Supreme Court did not hold or say anything other than what this Court itself has held and said, and Ms. Nash would not have cited it except for the fact that it is cited and quoted as above, with approval, and was followed, in one of the cases from other jurisdictions (here, Vermont) with which the Port Authority larded its Brief. The Vermont case is McCleary v. Wally's World, Inc., 2007 VT 140, 945 A.2d 841, 846 (2007), and it is cited in footnote 12 on page 21 of the Port Authority's brief. McCleary also supports Ms. Nash. The other cases from other jurisdiction that the Port Authority cites in its Brief either support Ms. Nash or deal with issues such as the need to secure permission from an despite holding that there could not have been any finding of negligence against the City on the facts of the case, or the non appealing defendant had it appealed, this Court reversed the Appellate Division as to the non-appealing defendant garage, holding that "The Appellate Division ... was without power to vacate the judgment against [the other] defendant" that decided to not appeal the judgment as against it, holding that "[N]either CPLR 5522 nor any other statutory or constitutional authority [and this Court's declaration obviously included CPLR 5015(a) (5)] permits an appellate court to exercise any general discretionary power to grant relief to a non appealing party." (60 N.Y.2d at 63, 467 N.Y.S.2d at 190.) 23 appellate court before moving for relief from an affirmed judgment, or claims of fraud in the procurement of a judgment, or claims of newly discovered evidence, none of which have any relevance on this appeal. The Port Authority's present claim, that the reason it did not seek to appeal the Appellate Division's June 2, 2011, Decision and Order that affirmed Ms. Nash's Final Judgment "insofar as appealed from as limited by the briefs," to this Court was that it somehow believed Ms. Nash was a party on the Ruiz appeal (PA Br. p. 8.) This present contention, that the Port Authority did not appeal the Appellate Division's June 2, 2011, Decision and Order, that was made on and decided the only appeal it took from Ms. Nash's Final Judgment, in an appeal that applied only to her Final Judgment, because it somehow believed, despite having represented to, and prevailed in this Court that Ms. Nash "is not a respondent [on the Ruiz] appeal because the Port Authority did not seek (and was not granted) leave to appeal from a judgment in favor of Ms. Nash - nor could it have, because Ms. Nash's case is currently pending before the Appellate Division," is way beyond the boundary of 24 credibility. At the time that the Port Authority and its lawyers allegedly made what they now say was an inadvertent mistake, as opposed to a deliberate, calculated and strategic decision, to not seek to appeal the Appellate Division's June 2, 2011, Decision and Order, which was in mid-2011, it was represented, as it is now, by one of the largest law firms in the world. Its insurance carrier, Lloyds of London, that is the real party in interest here, since the Port Authority has regular commercial insurance that covers its liability to Ms. Nash, was, and is, represented by another of the premier law firms in this country. It is simply inconceivable that those two firms, and the Port Authority, that maintains its own large Law Department, and that has vigorously contested Ms. Nash's claim for 20 years, even if, despite their previous declarations to the contrary, they actually held it, would have allowed that to happen, and simply not filed a motion for leave to appeal. 14 The Port Authority's present 14 The Port Authority was, in mid-2011, and is now, is represented by the firm of Weil Gotshal & Manges, LLP. In 2011, on its website (www.weil.com/new-york) the Weil firm said that "more than 500 attorneys practice in [its] New York office" alone, that "litigation" is one of its "main 25 contention has all the earmarks of an ex post facto position of convenience. III CPLR 5015 HAD NO APPLICATION TO MS. NASH'S AFFIRMED FINAL JUDGMENT In her main Brief (POINT II, pp. 80-86) Ms. Nash noted that this Court's September 22, 2011, Decision on the Ruiz appeal was not a Decision in her case, nor could it have been since this Court excluded Ms. Nash's affirmed Final Judgment departments," and that "the hallmark of its New York Practice is [its] commitment to providing first class client service and sound commercial judgment." The Port Authority's obligations to Ms. Nash are covered by ordinary commercial insurance under policies issued by Lloyds of London. Lloyds is and always has been represented here by the firm of Mendes & Mount, LLP. Attorneys from that firm attended virtually every conference and hearing for 20 years. They also attended Ms. Nash's damages trial almost every day and consulted there with the trial attorneys for the Port Authority. On its website in 2011 Mendes & Mount trumpeted that its "litigation attorneys have the necessary skills to successfully see your matter through from inception to ultimate determination on appeal, wherever a claim may arise. With few peers in the realm of insurance law, Mendes brings uncommon skill and tenacity to litigation matters." (www.mendes.com!practices.php?ServiceID=&) 26 from "the scope" of that Decision. The Port Authority's refusal to seek leave to appeal the Appellate Division's June 2, 2011, Decision and Order to this Court deprived this Court, as it also ruled on September 22, 2011, of jurisdiction to stay the enforcement of Ms. Nash's Judgment or grant the Port Authority any relief from it. Ms. Nash repeats that the Appellate Division's June 2, 2011, Decision and Order that affirmed Ms. Nash's Final Judgment, also held that the Port Authority had abandoned any defense to Ms. Nash's claim, including, in particular, any defense that it was immune from liability to her on her particular claim on the ground that it was engaged in a "governmental function." Accordingly, when this Court rendered its decision in the Ruiz appeal there was no such defense to Ms. Nash's claim in her case. Further, the Appellate Division's June 2, 2011, Decision and Order "superseded" and "terminated" that Court's Interim Decision and Order of April 29, 2008, as it had previously been Entered as to her case. Dayon v. Downe Communications, Inc., supra, Aho v. Rhodes, supra. Thus, Ms. Nash's affirmed Final 'Judgment, that she was 27 entitled to enforce on and after July 13, 2011, when the Port Authority's time to seek leave to appeal the Appellate Division's June 2, 2011 Order expired without it having sought such leave, was "based" 9(CPLR 5015(a) (5)) on the June 2, 2011, affirmance by the Appellate Division. That Order was never "reversed" "modified" or "vacated" (CPLR 5015 (a) (5) ), and it could never be. Sears, supra, 274 N.Y. at 400-401. Consequently, CPLR 5015 could not have, even arguably, have applied to Ms. Nash's affirmed Final Judgment. Ms. Nash also noted that after the Port Authority decided to not seek an appeal of the Appellate Division's June 2, 2011, Decision and Order, neither the lAS court nor the Appellate Division had any inherent power or discretion to vacate Ms. Nash's affirmed Final Judgment, and to the extent they had they abused it. As the Supreme Court said in, Ackerman v. United States, supra: "Petitioner cannot be relieved of such a choice ["a considered choice not to appeal"] because hindsight seems to indicate to him that his decision was probably wrong ... There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." (340 U.S. at 198.) 28 Relieving the Port Authority from the consequences of its deliberate, strategic and considered decision to not seek review of the June 2, 2011, Decision and Order of th Appellate Division that affirmed Ms. Nash's Final Judgment would have been an abuse of discretion, and any "inherent U power the lAS court of the Appellate Division might have had as to that Judgment if they had any, and they did not. CONCLUSION For the reasons stated herein and in her main Brief Ms. Nash respectfully requests: A. that the Decision and Order of the Appellate Division, First Department dated January 8, 2013, be reversed and vacated, and Ms. Nash's affirmed Final Judgment be automatically reinstated, B. that this Court make clear that there is no impediment to the immediate enforcement of Ms. Nash's affirmed Final Judgment, and C. that this Court grant Ms. Nash such other and further relief on and as to this appeal as to it appears just and equitable in the premises, including her costs. 29 Dated: July 17, 2013 LOUIS A. MANGONE, ESQ. Attorney for Plaintiff- Respondent Linda P. Nash 40~~ 505 Greenwich Street lOB C/O Mangone New York, New York 10013 (646) 704-0029 (954) 661-7082) 826abr29-2/13 30