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

Brief

N.Y.October 9, 2013

New 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 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: May 16, 2013 TABLE OF CONTENTS BRIEF FOR PLAINTIFF-APPELLANT LINDA P. NASH . . . .1 Preliminary Statement . . . . . . . QUESTIONS PRESENTED . JURISDICTIONAL STATEMENT , , . 1 .. 14 16 PROCEDURAL HISTORY AND FACTUAL BACKGROUND OF MS. NASH'S ACTION .............•..... 18 A. Ms. Nash's Case Went to Trial on Damages in February, 2009, Ended on March 9 2009; the Final Judgment Was Entered in Her Action on January 15, 2010, and the Port Authority Appealed it to the Appellate Division That Afternoon_ 22 B. Mr. Ruiz's Judgment Was Entered on January 20, 2010, and the Port Authority Moved for Leave to Appeal it to . .. 22 C. The Port Authority Pursued the Two Appeals Separately and Simultaneously in the Two Courts . . . . . . . . .. . . . . .23 D. The Port Authority Prosecuted its Appeal from Ms. Nash's Final Judgment Before the Appellate Division, but Limited It, and the Appellate Division Affirmed Ms. Nash's Final Judgment "Insofar as" The Port Authority Had Appealed from it . . . . .. 33 i E. The Port Authority Refused to Seek Leave to Appeal the Affirmance of Ms. Nash's Final Judgment to this Court, and Abandoned it and All Claims it Was Not Liable to Her . . . . . 36 F. Despite the Fact it Had Abandoned its Appeal from Ms Nash's Affirmed Final Judgment and Waived Any Claim it Was Not Liable to Her on Her Affirmed Final Judgment Against it the Port Authority Moved for a Stay of Enforcement of it . . . 38 G. The "In the Pipeline" Exchange in this Court in Which the Port Authority Admitted That it Could Not "Unravel" Ms. Nash's Affirmed Final Judgment, as to Which it Had Previously and Voluntarily Ended the Appeals Process Earlier, Even If this Court Would Reverse its Liability to Mr. Ruiz . . . .... 42 H. The Port Authority Then Moved in the IAS Court for an Order Vacating Vacate Ms. Nash's Affirmed Final Judgment on the Claim That this Court, in the Ruiz Decision, Had "Unraveled" it 45 ARGUMENT POINT I WHEN THE PORT AUTHORITY DECIDED, VERY DELIBERATELY, TO NOT SEEK LEAVE TO APPEAL THE APPELLATE DIVISION'S AFFIRMANCE OF MS. NASH'S FINAL JUDGMENT TO THIS COURT IT ALSO, VERY DELIBERATELY, (A) ALLOWED MS. NASH'S FINAL JUDGMENT TO BECOME RES JUDICATA ON THE MERITS OF HER CLAIM AGAINST IT, TO WIT, "A CONCLUSIVE DETERMINATION OF ALL "QUESTIONS OF BOTH LAW AND FACT THERE LITIGATED," "THE LEGAL EFFECT" OF WHICH COULD NOT BE "DESTROY OR DIMINISH" EVEN IF IT "WAS ii ERRONEOUS," (B) WAIVED AND ABANDONED ITS PURSUIT OF AN ORDER REVERSING THE APRIL 29, 2008, INTERIM ORDER OF THE APPELLATE DIVISION IN MS. NASH'S CASE, AND ALL CLAIMS OF ERROR IN HER FINAL JUDGMENT, (C) DEPRIVED THIS AND ALL OTHER COURTS OF SUBJECT MATTER JURISDICTION TO "DESTROY OR DIMINISH" IT, AND (D) PUT AN END TO MS. NASH'S CASE .....•...53 A. Ms. Nash's Affirmed Final Judgment Was Res Judicata Between Her and the Port Authority on the Merits of Her Claim Against It; to Wit, "A Conclusive Determination of Questions of Both Law and Fact There Litigated," "The Legal Effect" of Which Could Not Be "Destroy [ed] or Diminish [ed]" Even if it "Was Erroneous" . .54 B. The Port Authority, by Refusing to Seek Leave to Appeal the Appellate Division's Affirmance of Ms. Nash's Final Judgment to this Court, Waived and Abandoned its Pursuit of an Order Reversing the April 29, 2008, Order of the Appellate Division That Affirmed the Verdict of Liability Entered in Ms. Nash's Case, Indeed, Waived and Abandoned All Claims of Error in Ms. Nash's Final Judgment and Was Precluded, as a Matter of Law, from Resurrecting Any of Those Claims or Pursuits. .66 C. Because this Court's Decision on the Ruiz Appeal Was Rendered after the Port Authority Had Put an End to the Appellate Process as to Ms. Nash's Affirmed Final Judgment, I.e., Had Deliberately Taken it out "Of the Pipeline," this Court's Decision in Ruiz Could Not Be Applied to Vacate, or "Destroy" or "Diminish" the Conclusive Legal Effect of Ms. Nash's Affirmed Final Judgment .69 iii D. The Appellate Division's Decision in MCMahon v. City of New York Was Consistent with These Well Settled Rules; the Decisions of the lAS Court and the Majority in the Appellate Division below Violated All of Them . . . . . . . . 72 POINT II THIS COURT'S SEPTEMBER 22, 2011 DECISION IN RUIZ WAS NOT A DECISION IN MS. NASH'S CASE, WHERE THE PORT AUTHORITY VOLUNTARILY ABANDONED ITS PURSUIT OF AN ORDER REVERSING THE APPELLATE DIVISION'S APRIL 29, 2008, INTERIM ORDER, THAT SEPARATELY AFFIRMED THE PORT AUTHORITY'S LIABILITY TO HER ON HER CLAIM, DID NOT, AND COULD NOT HAVE BEEN, INTENDED TO APPLY TO MS. NASH'S PREVIOUSLY AFFIRMED FINAL JUDGMENT, AND COULD NOT SERVE AS A PREDICATE FOR ANY MOTION FOR RELIEF FROM MS. NASH'S AFFIRMED FINAL JUDGMENT UNDER CPLR 5015 (A) (5) 80 A. The Port Authority Deliberately Abandoned its Pursuit of Any its Defense That it Was Not Liable to Ms. Nash on Her Claim, Including Abandoning its Pursuit of an Order Reversing the Appellate Division's April 29, 2008, Decision That Separately Affirmed the Port Authority's Liability to Ms. Nash on Her Claim, and this Court's Later Rendered Decision on the Ruiz Appeal Did Not, and Could Not Have, Resurrected That Defense, and Could Not Serve as a Predicate for a Motion for Relief from Ms. Nash's Affirmed Final Judgment under CPLR 5015(a) (5) 80 iv B. C. Neither the lAS Court Nor the Appellate Division Had Jurisdiction, and Thus Lacked Any Discretion to Disturb or in Any Way "Diminish" or "Destroy" the Conclusive Effect of Ms. Nash's Affirmed Final Judgment, and Even If They Had Any Such Discretion They Would Have Abused it as a Matter of Law .. The Inherent Power of the Court . . 83 . .85 CONCLUSION . v . . 86 TABLE OF AUTHORITIES Cases Federal Cases Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed. 2d 571 (1981) 4 Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980) . New York State Cases . . . . . . . . 70 Adams Drug Co. Inc. v Knobel, 172 A.D.2d 470,569 N.Y.S.2d 19 (pt Dep't 1991) ..... 68 Bertini v. Murray, 289 N.Y.352, 45 N.E.2d 907 (1942) 25 Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803 (1976) 61 Deeves v. Fabric Fire Hose Company, 14 N.Y.2d 633, 249 N.Y.S. 2d 423 (1964) 64 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). . . . . . . . .3, fn.3, passim Gager v. White, 53 N.Y.2d 475, 425 N.E.2d 851, 53 N.Y.S.2d 463 (1981) 4 iv Glicksman v. Board of Education/Central School Board of Comsewogue Union Free School District, 278 A.D.2d 364, 717 N.Y.S.2d 373, 374 (2d Dep't 2000) (2000 N.Y. Slip Ope 11150) . . . . . . . . . . . . .. 84 Haverstraw Park, Inc. V. Runcible Properties Corporation, 33 N.Y. 637, 301 N.E.2d 553, 347 N.Y.S.2d 585 (1973) .. 37, fn. 16, 65 In re Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610 (1967) .... 63 In re World Trade Ctr. Bombing Litig., 3 Misc. 3d, 440, 776 N.Y.S.2d 713 (S. Ct. N.Y. Co. 2004), aff'd., In re World Trade Ctr. Bombing Litig., 13 A.D.3d 66, 786 N.Y.S.2d 869 (lst Dep't 2004) ... 13, fn. 4 .8, fn. 10 Passim In the Matter of World Trade Center Bombing Litigation, Steering Committee, et al, respondents, v. Port Authority New York and New Jersey, 17 N.Y.3d 428, 957 N.E.2d 733, 933 N.Y.S.164 (2011) of fn. 9, passim. . .7, 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 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) ..... 49 Lacks v. Lacks, 41 N.Y .. 2d 71, 359 N.E.2d 384, 390 N.Y.S.2d at 879 (1976) ,fn.5, passim vii Linda P. Nash, Plaintiff-Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant, In re World Trade Center Bombing Litiaation, 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 (pt Dep't 2008). . 21 Low, et al. v. Bankers' Trust Co. et al., 265 N.Y. 264, 192 N.E.406 (1934) ..... McKenna v. County of Nassau, 61 N.Y.2d 739, 460 N.E.2d 1348, 472 N.Y.S.2d 913 (1984) . . . . 65 . . . . . . . .79 McMahon v. City of New York, 105 A.D.2d 101, 483 N.Y.S.2d 228 (pt Dep't 1984) . . . . . . . . 10, passim Nash v. Port Auth. Of N.Y. & N.J., 85 A.D.3d 414, 923 N.Y.S.2d 840 (lst Dep't. 2001) . 2 fn .. 2 Nash v. Port Authority, (S. Ct. N.Y. Co. May 11, 2012) 1 Nash v. Port Authority, 102 A.D.3d 420, 959 N.Y.S.2d 4 (lst Dep't 2013) ... 1, passim O'Boyle v. Brenner, 301 N.Y.685, 95 N.E.2d 47 (1950) .. Ocean Acc. & Guarantee. Corp. v. Otis Elevator Co., 291 N.Y. 254, 52 N.E.2d 421 (1943) 24 .65 O'Connor, et al. v. City of New York, 58 N.Y.2d 184, 447 N.E.2d 33, 460 N. Y. S. 2d 485 (1983) 13, fn. 11, passim Parker v. Rogerson, 35 N.Y.2d 751, 361 N.Y.S.2d 916 (1974) .24 People v. Brady, 4 N.Y.3d 192, 824 N.E.2d 953, 791 N.Y.S. 513 (2005) 7 viii People v. Favor, 82 N.Y.2d 254, 624 N.E.2d 631, 604 N.Y.S.2d 495, 498 (1993) 71 People v. Pepper, 53 N.Y.2d 213, 423 N.E. 368, 440 N.Y.S.2d 889 (1981) 6, 69 People v. Thomas, 47 N.Y.2d 37, 43, 389 N.E. 2d 1094, 416 N.Y.S.2d 573, 576, (1979) 65 Pollak v. Port Morris Bank, 257 N.Y. 287, 177 N.E,865 (1931) . . . . 65 The Review Company v. General Bronze Corporation, 37 Misc.2d 209, 236 N.Y.S.2d 827 (S. Ct. Kings Co. 1962) ..... 41, in. 17 Rosner v. Paley, 65 N.Y. 2d 736, 481 N.E.2d 553, 492 N.Y.S.2d 13 (1985) .. . . . . . 7, fn. 4 Sears Roebuck & Co. v 9Ave. 31-St. Corp., 274 N. Y. 388, 9 N.E.2d 20 (1937) 3, fn. 4, passim Seider v. Roth, 17 N.Y.2d 111, 216 N.E.2d 312, 269 N.Y.S.2d 99, (1966) 70 Skupeen v. City of New York, 29 A.d.2d 282, 287 N.Y.S.2d 596 (lst Dep't 1968) 36 Slater v. American Mineral Spirits Company, et al., 33 N.Y.2d 443, 310 N.E.2d 300, 354 N.Y.S.2d 620 56 ix CPLR 5015 CPLR 5019 CPLR § 5601. (a) New York Statutes . . . .. 1 .41, fn. 17 16 Uniform Trial Court Rules, Part 130-1, §130-1.1. (c). Other Authorities 84 Arthur Karger, The Powers of the New York Court of Appeals (Rev. 3~ Ed.), § 1:5 . . . . .. .... 22, fn. 16 Siegel, Practice Commentary C5513:1 (1995), McKinney's Cons. Laws of New York CPLR 5513 .... 66,fn. 20 x 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 Preliminary Statement BRIEF OF PLAINTIFF- APPELLANT LINDA P. NASH Plaintiff-appellant Linda P. Nash submits this Brief in support of her appeal from a Decision and Order of the Appellate Division, First Department dated January 8, 2013, Entered by the Clerk of that Court that day. (Nash v. Port Authority, 102 A.D.3d 420, 959 N.Y.S.2d 4 (1 st Dep't 2013)). A copy of the Decision appears at (A456-468 1 ). In that Decision the Appellate Division, by a vote of 3- 2, affirmed a Decision of the lAS Court (Tingling, J.) dated May 11, 2012, Entered May 15, 2012 (A16). In that decision, the lAS court, that lacked jurisdiction to review Ms. Nash's previously affirmed Final Judgment, exercise any discretion J The reference "AU is to the Appendix on this appeal. as to it, or grant the Port Authority any relief from or as to it, vacated that Judgment and dismissed Ms. Nash's Complaint. Ms. Nash's Final Judgment had been unanimously affirmed by the Appellate Division on June 2, 2011 (A146-147), "insofar as" the Port Authority had appealed from it. 2 (Unless otherwise stated, all emphasis has been supplied.) The Port Authority determined to not seek leave to appeal that affirmance to this Court. When it made that decision, and it made it deliberately to further its overall litigation strategy, the Port Authority (1) waived and abandoned its pursuit of an order reversing the Interim Order of the Appellate Division made on April 29, 2008, in and as it applied Ms. Nash's case, that affirmed, separately and in under the Index Number of her case, the Port Authority's liability to Ms. Nash on her particular claim against it, (2) waived and abandoned any claim that there was any error in Ms. Nash's affirmed Final Judgment, including that it was liable to her on her claim, and could not later resurrect any of those claims, in any forum, under any rubric, in any 2 Nash v. Port Authority of New York and New Jersey, 85 A.D.3d 414, 923 N.Y.S.2d 840 (1 st Dept. 2011). 2 court,3 (3) allowed Ms. Nash's Final Judgment to become res judicata between it and her on the merits of her claim, (4) deprived this Court and all others of subject matter jurisdiction over her claim and her affirmed Final Judgment, such that neither this Court nor any other had any jurisdiction (or discretion or "inherent power") to "destroy or diminish," even if had been erroneous 4 , and (5) put an end to Ms. Nash's actions. The Port authority's time to seek leave to appeal Ms. Nash's affirmed Final Judgment to this Court expired on July 12, 2011, without it having sought such leave. Having deprived this and all other Courts of subject matter jurisdiction over Ms. Nash's claim and her affirmed Final Judgment, the Port Authority also deprived this and all other courts from exercising any discretionary or inherent power over Ms. Nash's claim and her affirmed Final Judgment. 3 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). 4 Sears Roebuck & Co. v 9Ave. 31-St. Corp., 274 N.Y. 388, 400-401, 9 N.E.2d 20 (1937). ~t E.g., Lacks v. Lacks, 41 N.Y.2d 71, 77, 359 N.E.2d 384, 390 N.Y.S.2d 875, 879 (1976), cited by the dissent"The point is that the litigation having gone to final judgment, the right to review by appeal having been exhausted, that is and should be the end of the matter." "The Final Judgment was thus beyond further review." 41 N.Y.2d at 73, 390 N.Y.S.2d at 877. 3 See this Court's decision in Gager v. White, 53 N.Y.2d 475, 425 N.E.2d 851, 53 N.Y.S.2d 463 (1981). There, in the Concurring Opinion,6 the Hornbook and self-evident rule, set forth by the United States Supreme Court in Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 616, 66 L.Ed. 2d 571 (1981), was quoted specifically and cited with approval: "A court lacks discretion to consider the merits of a case over which it is without jurisdiction " These consequences of the Port Authority's abandonment of its appeal from Ms. Nash's affirmed Final Judgment are well known, well settled, and unalterable. 7 Nevertheless, on July 20, 2011, well after its time to seek leave to appeal the affirmance of Ms. Nash's Final Judgment had expired, the Port Authority sought to avoid them. On that day it filed a motion in this Court in which, despite its deliberate refusal to seek leave to appeal it to 653 N.Y.2d at 490, 53 N.Y.S.2d at 470. The result in Gager v. White was unanimous. It supports the reversal of the decision below, and is discussed further at page 7 The Port authority could not be relieved of those consequences, even if it claimed that its decision was some sort of misjudgment: and it never made any such claim. See, e.g., Rosner v. Paley, 65 N.Y. 2d 736, 738, 481 N.E.2d 553, 492 N.Y.S.2d 13, 14 (1985). Neither clients nor courts can "second guess" "counsel's strategic judgments in the selection of trial tactics ... " or provide any relief from the consequences of those judgments. 4 this Court, it claimed that this Court had jurisdiction over Ms. Nash's affirmed Final Judgment. The Port Authority claimed on that motion that because it had appealed from the final Judgment entered against it in favor of Antonio Ruiz, the plaintiff in another case arising out of the 1993 bomb explosion in the Garage of the World Trade Center on February 26, 1993 ("the Ruiz appeal"), and, it said, Ms. Nash was a party on that appeal, the enforcement of Ms. Nash's Final Judgment was "automatically stayed pursuant to CPLR 5519 (a) (1) "8. Alternatively, it said that if it was not entitled to an automatic stay of enforcement of Ms. Nash's affirmed Final Judgment, because she was not a party to the Ruiz appeal (and it had not sought leave the affirmance of Ms, Nash's affirmed Final Judgment - the essential prerequisite for any stay on any ground)) it asked this Court to stay the enforcement of it as a matter of discretion. (A193. ) On that motion the Port Authority contended that if it had to satisfy Ms. Nash's Judgment before this Court decided the Ruiz appeal, and this Court reversed its liability to Mr. Ruiz, that reversal would somehow apply to vacate Ms. Nash's previously affirmed Final Judgment and the Port Authority 8 Mot ion of the Port Authority to this Court, dated July 20, 2011 (A 179-196), at A187. 5 would be entitled to recover the money it would have paid to Ms. Nash. It then claimed it would have a difficult time retrieving the money, and thus would be irreparably harmed, if Ms. Nash were not stayed from enforcing her affirmed Final Judgment pending this Court's determination of the Ruiz appeal. Because Ms. Nash's action was not then pending in this or any other Court the Port Authority made the motion under the caption of its Ruiz appeal. It was a frivolous and bankrupt motion and the Port Authority knew it. As it was prompted by Judge Ciparik to admit at the oral argument on the Ruiz appeal on August 24, 2011, if this Court did reverse its liability to Mr. Ruiz, that reversal would not apply to cases like Ms. Nash's, as to which the appeals process had ended, i.e., cases that were no longer "in the pipeline," when the Ruiz decision was rendered, and would not "unravel" any final dispositions in any of the other 1993 Bombing cases, Ms. Nash's affirmed final judgment among them, that had previously been made. That admission was, of course, a correct statement of the law. See, e.g., People v. Pepper, 53 N.Y.2d 213, 221, 423 N.E. 368, 440 N.Y.S.2d 889, 892 (1981), Gager v. White, supra. The "in the pipeline" exchange was recorded, and is available in the Oral Argument Archives of this Court for August 24, 2011. 6 See, too, People v. Brady, 4 N.Y.3d 192, 197, 824 N.E.2d 953, 791 N.Y.S. 513, 517 (2005): "retroactive U effect of a Supreme Court decision was given to the defendant there because his "appeal was not yet final u when the Supreme Court decision was rendered. This Court's decision in People v. Brady is significant on this appeal because it was written by Judge Ciparik. It demonstrates the obvious, namely that Judge Ciparik was well versed in the law on the issue when she, quite pointedly, asked the attorney for the Port Authority if a reversal by this Court of the Port Authority's liability to Mr. Ruiz would apply to "unravel u decisions in cases like Ms. Nash's, where she knew when she asked the questions, were no longer in the appeals process (i.e., no longer "in the pipeline,u when this Court rendered its decision on the Ruiz appeal. The attorney for the Port Authority, also well versed in the applicable law, replied, correctly, that it would not. In a decision rendered on September 22, 2011 9 (A148- 149), the same day it rendered its decision on the Ruiz appeal, in which it reversed the Port Authority's liability 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). 7 "as to Ruiz" (A22-83), this Court dismissed the Port Authority's motion for a stay of enforcement of Ms. Nash's affirmed Final Judgment. It held that because the Port Authority refused to seek a review of it in this Court, and thus "no appeal or motion for leave to appeal in the Nash action is pending before this Court (see CPLR 5519)," it did "not have jurisdiction to entertain the motion," let alone grant the Port Authority any relief from or as to Ms. Nash's affirmed Final Judgment, even as a result if its decision on the Ruiz appeal it rendered that same day. Further, in its Decision on the Ruiz appeal, in a footnote that followed right after it announced it was reversing the Port Authority's liability "as to Ruiz," the majority declared, in footnote 7, that "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. ,,10 Despite (1) representing to this Court on August 24, 2011, that if this Court reversed its liability to Mr. Ruiz on the Ruiz appeal, as it did, that such a reversal would not 10 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 428, 441 fn.7, 957 N.E.2d 733,933 N.Y.S2d 164,172 at fn.7 (2011). 8 "unravel' judgments made earlier in cases that, like Ms. Nash's, were not "in the pipeline" when this Court rendered that decision, and (2) this Court's September 22, 2011, Decisions that dealt with Ms. Nash's affirmed Final Judgment, holding that it had no jurisdiction to review, stay the enforcement of, or grant the Port Authority any relief from or as to, Ms. Nash's Final Judgment, and expressly excluding Ms. Nash's action from "the scope" of its Ruiz decision issue the same day, On September 26, 2011, the Port Authority moved by 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. ) In the affirmation submitted to the lAS court in support of that motion, dated September 26, 2011 (A19-21), the same attorney who represented to this Court a month earlier, that should this Court reverse the Port Authority's liability on the Ruiz appeal such a reversal would not "unravel" judgments made earlier in cases that, like Ms. Nash's, were no longer "in the pipeline," omitted any mention of that admission. He also omitted any mention of this Court's decision of September 22, 2011, in which it held that it had no 9 jurisdiction to grant the Port Authority any relief from or as to Ms. Nash's affirmed Final Judgment and dismissed the Port Authority's motion for a stay of its enforcement on account of the Ruiz appeal and decision. Rather, he swore to the lAS court that: "15. No prior application for the relief requested in the Port Authority's motion has been made to this or any other court." (A21. ) Shortly after it was presented to it, the lAS Court signed the Order to Show Cause presented to it by the Port Authority and stayed the enforcement of Ms. Nash's affirmed Final Judgment. It appears at A17-18. By Order Entered May 15, 2012 (A16), the lAS Court granted the Port Authority's motion, vacated Ms. Nash's affirmed Final Judgment, and dismissed her Complaint. It did so on the ground that this Court, in its Decision in the Ruiz appeal, had "specifically eviscerate[dl any judgment [including Ms. Nash's affirmed Final Judgment], holding or finding of liability involving tortious liability on behalf of the Port Authority in the 1993 World Trade Center bombing." (A16. ) That holding came right after the lAS Court noted that this Court, in footnote 7 of the majority opinion on the Ruiz appeal, expressly held that "The Nash action, however, is beyond the scope of this [the Ruiz] appeal. A judgment on 10 the Nash action was recently affirmed by the Appellate Division." This Court will note that the lAS Court did not cite CPLR 5015 or say it was exercising any discretion at all when it vacated Ms. Nash's affirmed Final Judgment. Nor did it say it was exercising any "inherent power," or cite any authority for its decision other than this Court's decision on the Ruiz appeal. Instead, it cast its decision as a mere formal, ministerial, dismissal of a Judgment that it said this Court had already "eviscerated." Perhaps not surprisingly, the lAS Court (as did the majority in the Appellate Division after it) completely ignored this Court's other decision of September 22, 2011, namely the decision in which it held that it had no jurisdiction over Ms. Nash's affirmed Final Judgment when it decided the Ruiz appeal. Not having jurisdiction over Ms. Nash's Affirmed Final Judgment at the time it rendered the Ruiz decision, this Court, of course, could not possibly have "eviscerated" it or intended to "eviscerate" it in the Ruiz decision. The lAS court's decision was illogical, clearly erroneous, and could not stand. That apparently was evident to the Appellate Division; the three Justices in the majority as well as the two 11 Justices in the minority, when they reviewed it on Ms. Nash's appeal of the decision of the lAS Court to it. Thus, when it affirmed the Decision of the lAS Court vacating Ms. Nash's affirmed Final Judgment, the majority in the Appellate Division actually rejected the untenable rationale upon which the lAS Court had vacated it, which was that this Court already had "specifically eviscerate[d]" it in its Ruiz decision. In its place the majority substituted its own rationale, fatally flawed in its own right, for vacating Ms. Nash's affirmed Final Judgment. The majority in the Appellate Division held that the "underlying reasoning" of its decision in McMahon v. City of New York, 105 A.D.2d 101, 483 N.Y.S.2d 228 (pt Dep't 1984), applied to Ms. Nash's affirmed Final Judgment "as well" (A458), and then that in future appellate proceedings in Ms. Nash's case, that simply could not possibly ever occur, a court could and would review Ms. Nash's affirmed Final Judgment on its merits, and could and would apply this Court's reasoning in Ruiz to it and dismiss Ms. Nash's Complaint. Thus, the majority below held, the decision of the lAS Court was not an improper exercise of discretion (A459); discretion that the lAS court did not say it was exercising when it vacated Ms. Nash's affirmed Final Judgment. In reality, the "underlying reasoning" of the McMahon 12 decision (discussed in greater detail in POINT I. D. below) did not permit such a result. The "underlying reasoning" of the McMahon decision was that since, at the time the Judgment in the related action against the Cityll was reversed by this Court, "the issues [of the City's liability to the McMahons] were still subject to review on that [still pending} appeal," i.e., was still "in the pipeline," when the decision in the related action was rendered. Since the Port Authority deliberately abandoned appeal of Ms. Nash's affirmed Final Judgment, and its pursuit of a reversal of the April 29, 2008, Interim Order of Appellate Division in and as to Ms. Nash case, and taken her entire case "out of the "pipeline," and conclusively ended it before this Court rendered its decision in Ruiz, further appellate proceedings as to Ms. Nash's affirmed Final Judgment postulated by the majority on the Appellate Division could never occur. As a matter of law, the Appellate Division, like the lAS Court, lacked subject matter jurisdiction, and thus any discretion, over Ms. Nash's affirmed Final Judgment, and could not vacate it, or grant the Port Authority any relief from or as to it, let alone "destroy or diminish" it. (Sears, supra.) 11 O'Connor, et ai. v. City of New York, 58 N.Y.2d 184, 447 N.E.2d 33, 460 N.Y.S.2d 485 (1983) 13 Accordingly, Ms. Nash took this appeal. QUESTIONS PRESENTED 1. Where the Port Authority decided to not seek leave to appeal the Appellate Division's June 2, 2011, affirmance of Ms. Nash's Final Judgment, allowed it to become res judicata on the merits of her claim against it, to wit, "a conclusive determination Of all "questions of both law and fact there litigated," "the legal effect" of which could not be "destroy[ed] or diminish[ed]" even if it "was erroneous," waived and abandoned its pursuit of an Order reversing the April 29, 2008, Interim Order of Appellate Division in Ms. Nash's case, and all claims of error in Ms. Nash's affirmed Final judgment, deprived this and all other Courts of subject matter to jurisdiction to "destroy or diminish" it, and put an end to Ms. Nash's case, could the lAS Court vacate Ms. Nash's affirmed Final Judgment on the basis of this Court's September 22, 2011, Decision in Ruiz, that this Court rendered 14 after the Port Authority had deprived it of Jurisdiction to grant the Port Authority any relief as to Ms. Nash's Final Judgment, and from "the scope" of which this Court, in the Ruiz decision itself, expressly excluded Ms. Nash's case? The Majority in the Appellate Division below held that it could. 2. Where this Court's September 22, 2011 decision in Ruiz was not a decision in Ms. Nash's case, in which the Port Authority voluntarily abandoned its pursuit of an Order reversing the Appellate Division's April 29, 2008, Interim Order, that separately affirmed the Port Authority's liability to her on her claim, and did not, and could not have been, intended to apply to Ms. Nash's previously affirmed final judgment, could this Court's September 22, 2011, decision in Ruiz serve as a predicate for a motion for relief from Ms. Nash's affirmed final judgment under CPLR 5015(a) (5) or otherwise? 15 The Majority in the Appellate Division below held that it could. JURISDICTIONAL STATEMENT The Decision and Order of the Appellate Division appealed from is dated January 8, 2013. In it the Appellate Division, in a 3-2 decision, affirmed a decision of the lAS Court, dated May 11, 2012, that vacated Ms. Nash's affirmed Final Judgment. The Dissent, by two Justices of the Appellate Division, was on questions of law. Ms. Nash appealed from it as matter of right pursuant to CPLR § 5601. (a) on January 18, 2013. By a letter Dated January 29, 2013, the Clerk of the Court informed the parties that the Court would examine its subject matter jurisdiction over this appeal with respect to whether the two Justice dissent at the Appellate Division was on questions of law, and asked the parties to submit comments justifying the retention of subject matter jurisdiction of this appeal. The parties made their submissions, including submitting to the Clerk all the Briefs, and the Record, before the Appellate Division on the appeal below. In a 16 letter dated March 20, 2013, the Clerk of the Court informed the parties that the Court had terminated its jurisdictional inquiry and that this appeal would proceed in the normal course. The questions presented were argued by plaintiff- appellant in the Briefs she filed, and her oral argument in the Appellate Division below, and are the subject of the Dissent in the Court below at, at e.g.; A464-465: Ms. Nash's affirmed Final Judgment was beyond further review, and nNash's judgment having become final, the Port Authority cannot avoid its enforcement;" A465: "The Port Authority abandoned any claim that it was not liable to Nash ... ;" and A467-468: "Since the time to appeal from the [Appellate Division's] order of June 2, 2011 [that affirmed Ms. Nash's Final Judgment] finally determining the rights of the parties in Nash had already expired prior to the time the Court of Appeals decided Ruiz, Ms. Nash's judgment could no longer be disturbed. I would accordingly hold that the motion court improvidently exercised its discretion in granting the motion to vacate the judgment. fl 17 PROCEDURAL HISTORY AND FACTUAL BACKGROUND OF MS. NASH'S ACTION Ms. Nash began her action in 1993. 12 Many others, mostly tenants seeking damages for business interruption, also sued. In early 1994, all the cases were congregated before Justice Sklar in Supreme Court, New York County. In mid-1994 virtually all of the plaintiffs, including Mr. Ruiz, but not including Ms. Nash, voluntarily (there was no authority to compel consolidation) consolidated their actions under the umbrella of a Steering Committee. The Steering Committee was given its own Index Number, 600000/94, under which it prosecuted the claims of all the individuals who consented to be represented by it. The Steering Committee's attorneys, not the attorneys for the individual plaintiffs whose cases had been put under it, then 12 Ms. Nash was underground in the Garage of the World Trade Center when the bomb exploded just after noon on February 26, 1993. She had just driven into it, down a ramp to park in the Garage for a fee. She pulled behind a line of vehicles waiting for the Attendant to appear, got out of her car, closed the door, and the bomb exploded. Her injuries, all of which are permanent, included physical brain damage, PTSD, and other physical and emotional injuries. The injuries she suffered rendered her permanently unable to work. A "marked" copy of Ms. Nash's Verified Complaint (A105-111) was part of the Record at the Liability trial. Mr. Ruiz's was not 18 prosecuted those cases for discovery and a common issue liability trial. The Steering Committee and its lawyers also represented all those plaintiffs on the appeals, including the appeal the Port Authority took from the October 25, 2005, liability verdict, under the Index number of the Steering Committee, not the Index Numbers of the individual actions that had been placed under it. Ms. Nash refused to place her case under the Steering Committee, or to be represented by the Steering Committee's attorneys. Her individual action always proceeded separately, under its own Index Number. She was separately represented by her own counsel for and in all purposes and in all proceedings, including at the liability trial (in September and October, 2005) and on the Port Authority's appeal from the jury's liability verdict. She was never represented by the Steering Committee or its counsel. (Affirmed letter of Louis A. MAngone, Esq., Ms. Nash's counsel, to Justice Tingling, dated September 29, 2011, p. 12, fn.3, AI70.) Thus, at the liability trial there were two "groups" of plaintiffs: (1) Ms. Nash, represented separately by her own 19 counsel, whose case proceeded to trial under her individual Index Number, and (2) all the other remaining plaintiffs (i.e., those who had not settled their claims against the Port Authority by agreement - i.e., cases that were settled by the parties to them and the Port Authority by contract, that, once so settled could never be affected by any judicial rulings), whose claims proceeded under the umbrella and Index Number of the Steering Committee, and who were represented by the Steering Committee's lawyers, not their individual counsel. On October 26, 2005, the Jury in the liability trial found the Port Authority liable to the plaintiffs represented by the Steering Committee, and also to Ms. Nash in her case. The Port Authority appealed. In the Notice of Appeal it filed on April 5, 2007 (A457)13, the Port Authority, acknowledged the separate status of Ms. Nash's action, and the fact that the liability verdict applied separately to her, on the one hand, and the Steering Committee actions on 13 As the dissent below notes (A461), technically, the Port Authority appealed from an Order of Justice Figueroa, who presided at the liability trial, that denied the Port Authority's post-trial motion for judgment N.O.V. 20 the other. As this Court can see, the Port Authority declared on the face of that Notice (1) that it appealed from the verdict rendered against it in favor of the plaintiffs represented by the Steering Committee (that included Mr. Ruiz), under the caption and Index Number of the Steering Committee's action, 600000/94, and (2) further, and separately, declared that its Notice of Appeal "also applied" to Ms. Nash's action, to wit: "Linda P. Nash v. The Port Authority of New York and New Jersey, Index No. 129074/93." On April 29, 2008, the Appellate Division affirmed the jury's finding of liability. (51 A.D.3d 337, 856 N.Y.S.2d 583 (1 st Dep't 2008)). Reflecting the fact that Ms. Nash's action and verdict were separate and distinct from the actions of, and verdict for, the Plaintiffs represented by the Steering Committee, the Appellate Division's affirmance bears a double caption: "Linda P. Nash, Plaintiff-Respondent v. Port Authority of New York and New Jersev, Defendant- Appellant. and In re World Trade Center Bombing Litigation, Steering Committee, Plaintiff-Respondent v. Port Authority of New York and New Jersey, Defendant-Appellant." As the dissent below noted, 21 "The Port Authority did not seek leave to appeal from that Order [the April 29, 2009, Order, of the Appellate Division] to this Court, and instead permitted the parties to try their respective damages claims." (A462.) A. Ms. Nash's Case Went to Trial on Damages in February, 2009, Ended on March 9 2009; the Final Judgment Was Entered in Her Action on January 15, 2010, and the Port Authority Appealed it to the Appellate Division That Afternoon In February, 2009, Ms. Nash's case proceeded to a trial on the damages she suffered when the bomb exploded. That trial ended on March 9, 2009. The Final Judgment on the jury's verdict, that recites that the Port Authority is 14liable to Ms. Nash on her claim, was Entered in Supreme Court, New York County on January 15, 2010, and served on the Port Authority that day. (AI47.) That afternoon the Port Authority appealed "from [Ms. Nash's Final Judgment] and from each and every part thereof" to the Appellate Division, First Department. (A445.) B. Mr. Ruiz's Judgment Was Entered on January 20, 2010, and the Port Authority Moved for Leave to Appeal it to this Court on January 21, 2010 14 The Ruiz documents are part of the Record before this Court on the Ruiz appeal. 22 On January 20, 2010, five days after the Port Authority appealed Ms. Nash's affirmed Final Judgment to the Appellate Division, a Final Judgment issued by the Justice of the Supreme Court before whom the trial of Mr. Ruiz's damages claim was held, was Entered against the Port Authority in favor of Mr. Ruiz. On January 21, 2010, six days after it appealed Ms. Nash's final Judgment, and "each and every part" of it, to the Appellate Division, the Port Authority filed a motion in the Appellate Division for leave to appeal Mr. Ruiz"s final Judgment Entered directly to this Court. That motion was eventually granted by this Court. Ms. Nash was not served with that motion, was not a party to it, and did not participate in any of the proceedings on it in any way. C. The Port Authority Pursued the Two Appeals Separately and S~ultaneously in the Two Courts After this Court granted leave in the Ruiz case the Port Authority pursued the two separate appeals, its appeal of Ms. Nash's Final Judgment to the Appellate Division, and its appeal from Mr. Ruiz' final Judgment in this Court, separately in the two courts. In a letter to the Clerk of this Court dated October 5, 23 2010 (A177-178), discussed further below, the Port Authority, confirmed to 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." That seemingly candid admission, however, is not the whole story. Even though, and after, it had appealed Ms. Nash's Final Judgment to the Appellate Division, the Port Authority could have sought leave to appeal her Final Judgment to this Court, including in connection with the motion for leave it filed from Mr. Ruiz's later Entered Final Judgment. Parker v. Rogerson, 35 N.Y.2d 751, 361 N.Y.S.2d 916 (1974), O'Boyle v. Brenner, 301 N.Y.685, 95 N.E.2d 47 (1950). However, since "dual reviews," i.e., two appeals of a final Judgment are not permitted in the Appellate Division and in this Court, and the two appeals "are mutually exclusive" (Parker v. Rogerson, supra, 35 N.Y.2d at 753, 361 N.Y.S.2d at 917) the Port Authority could not have maintained the two appeals: it would have had to abandon one and pursue the other. Parker v. 24 Rogerson, supra, O'Boyle v. Brenner, supra, Bertini v. Murray, 289 N.Y.352, 45 N.E.2d 907 (1942). Pursuant to its overall litigation strategy of precluding this Court from ever reviewing Ms. Nash's claim on its merits, the strategy that it pursued to its final conclusion when it refused to seek leave to appeal the Appellate Division's June 2, 2011, affirmance of Ms. Nash's Final Judgment to this Court, the Port Authority chose to pursue its appeal from Ms. Nash's Final Judgment in the Appellate Division. Once the Port Authority made that choice, the only way it could have secured a review of its liability to Ms. Nash in this Court in the event the Appellate Division affirmed Ms. Nash's Final Judgment, as it did on June 2, 2011, would have been for it to appeal, or seek leave to appeal that affirmance to this Court. As we know, the Port Authority chose to not pursue that review. Instead, it chose to abandon that appeal and put Ms. Nash's affirmed Final Judgment beyond further review by any Court under any guise. On April 8, 2010, before (well before, as it turned out) the Port Authority perfected its appeal of her final Judgment 25 in the Appellate Division, Ms. Nash moved in that court for an order (1) directing the Port Authority to perfect its appeal from her Final Judgment (at that time her case had been pending for 18 years), by a date certain, (2) declaring that the Port Authority, that was claiming an automatic stay of enforcement of Ms. Nash's Judgment pursuant to CPLR 5519(a) (1), had no such stay, and (3) declaring that the Port Authority had waived any claims of error as to her Final Judgment other than the claim of error as to the assessment of interest on the damage awards made against it, the sole portion of her Judgment that the Port Authority claimed in the Pre-Argument Statement it filed on that appeal, was erroneous. In the Brief it filed in opposition to that motion (dated April 23, 2010), the Port Authority, declared that even though its Pre-Argument Statement alleged that the assessment of interest on the awards the jury made against it was the only part of Ms. Nash's final Judgment as to which it claimed error, its "Notice of Appeal expressly stated that the appeal was taken from 'each and every part'" of Ms. Nash's final Judgment, and that it "may raise, on [its appeal 26 of Ms. Nash's final Judgment to the Appellate Division] any adverse order or ruling affecting the judgment," including that the Appellate Division's April 29, 2008 Decision that separately affirmed the Port Authority's liability to Ms. Nash was erroneous. (Affirmation of Louis A. Mangone, Esq., dated July 22, 2011, submitted in this Court in Opposition to the Port Authority's motion for a stay, ~65, A239)15 It also 15 In the Courts below, in the proceedings on its motion to vacate Ms. Nash's Affirmed Final Judgment, the Port Authority attempted to rewrite history. In direct contradiction to its representations to the Appellate Division, and later to this Court, that its appeal from Ms. Nash's Final Judgment was "taken from 'each and every part'" of Ms. Nash's Judgment, and "Thus, [it] may raise, on [its appeal of Ms. Nash's final Judgment to the Appellate Division] anv adverse order or ruling affecting the judgment," including its liability to her under the Appellate Division's Interim Order of April 29, 2008, on its motion to vacate Ms. Nash's affirmed Final Judgment the Port Authority claimed that its appeal from Ms. Nash's Judgment was somehow limited to the "damages" issue, and that it was only on its later appeal from Mr. Ruiz's later entered Judgment to this Court that it raised the issue of its liability for the 1993 bombing. The only "damages" issue the Port Authority raised on its appeal from Ms. Nash's Final Judgment was the assessment of interest at the fixed rate of 9% pursuant to CPLR 5004. It did not claim that the awards made to Ms. Nash were erroneous. Nor did it claim that any of the rulings made in the course of her damages trial, or any of the instructions given to the jury, were erroneous. Since Mr. Ruiz's Final Judgment also assessed interest 27 cross moved for a declaration that enforcement of Ms. Nash's final Judgment had been stayed automatically pursuant to CPLR 5519(a) (1) merely by virtue of its filing its Notice of Appeal from it. The Appellate Division decided that motion on July 1, against the Port Authority on the damage awards the jury in his case made to him at the fixed rate of 9% pursuant to CPLR 5004, there was no difference between the only "damages" issue the Port Authority raised on its appeal of Ms. Nash's Final Judgment to the Appellate Division, and the "damages" issue present in Mr. Ruiz's Final Judgment, that it could have raised in the Appellate Division had it chosen to appeal Mr. Ruiz's Judgment to that Court. Similarly, the question of whether or not the Port Authority had a governmental function immunity with respect to the February 26, 1993, bombing, that was at issue in the Port Authority's appeal of Ms. Nash's Final Judgment to the Appellate Division, could have been raised on a direct appeal from Ms. Nash's Final Judgment to this Court had the Port Authority chosen to seek such an appeal here. The only difference would have been that if the Port Authority took a direct appeal to this Court from Ms. Nash's Final Judgment, this Court would have had to review that issue on the particular facts presented in Ms. Nash's case, that were not present in the claims of any of the plaintiffs, like Mr. Ruiz, whose claims were represented by the Steering Committee. As we have seen, when the Port Authority had the opportunity to secure such a review in this Court after the Appellate Division affirmed Ms. Nash's Final Judgment it chose to abandon its appeal rather that put the issue of its liability to Ms. Nash before this Court. 28 2010. In its Order (A315), given the Port Authority's affirmation to it that it had appealed from "each and every part of Ms. Nash's Final Judgment and "may raise, on [that] appeal, any adverse order or ruling affecting the judgment," the Appellate Division (1) declined to hold, at that time, that the Port Authority had waived or abandoned any claim of error as to Ms. Nash's Final Judgment, thereby leaving at issue on that appeal the Port Authority's liability to Ms. Nash pursuant to the Appellate Division's April 29, 2008 Decision, (2) declared that any existing stay of enforcement of Ms. Nash's Judgment was vacated, (3) declined to direct that the Port Authority perfect that appeal by a date certain, and (4) denied the Port Authority's cross motion for a declaration that it had an automatic stay of enforcement of Ms. Nash's Judgment pursuant to CPLR 5519(a) (1). On July 2, 2010, the Port Authority posted a bond that, together stayed the enforcement of Ms. Nash's Final Judgment until "the judgment so appealed from ... is affirmed" (A316), as it was on June 2, 2011. The Port Authority, that then was in full control of the schedule on that appeal, continued to do nothing to perfect 29 it, and it languished in limbo. On September 29, 2010, more than 9 months after it filed its Notice of Appeal from Ms. Nash's final Judgment in the Appellate Division, and while it still was refusing to perfect that appeal, Ms. Nash was fearful that the Port Authority would continue to refuse to perfect the appeal of her Judgment in the Appellate Division, proceed to complete its appeal from Mr. Ruiz's Judgment in this Court and then, if it were successful here, seek to have Ms. Nash's final Judgment subsumed under any Ruiz Decision, even though she was not a party to it, and the Port Authority had stymied any review by this Court of Ms. Nash's claim on its particular merits. So she wrote to this Court seeking to be declared a party to the Port Authority's appeal from Mr. Ruiz's final Judgment. The Port Authority opposed that request. In the letter dated October 5, 2010, that he sent to the Clerk of the Court (A117-118), Richard Rothman, Esq., the lead attorney for the Port Authority on its appeal of Mr. Ruiz's Final Judgment to this Court, and the lead attorney for the Port Authority on its appeal from Ms. Nash's Final Judgment to the Appellate Division, explained the factual and 30 legal situation, and the Port Authority's very different conduct in the two cases. In that letter Mr. Rothman, among other things, set forth, convincingly and winningly, the reasons why Ms. Nash was not and could not have been a party to the Port Authority's appeal of Mr. Ruiz's Judgment to this Court. As he informed this Court: "[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. Instead, the Port Authority appeals from a final judgment in favor of Plaintiff-Respondent Antonio Ruiz, which brings up for review the intermediate Appellate Division order fixing liability against the Port Authority" as to Mr. Ruiz. *** "In its Leave Application, the Port Authority expressly notified the Court of the status of the other World Trade Center actions ... specifically the Nash action . ... As the Leave Application [in Ruiz] explained, an appeal in Nash is pending before the Appellate Division to 'address, without limitation, the rate of interest on judgments against the Port Authority.'" *** "The confusion as to Ms. Nash's status as a respondent appears to arise from the mistaken impression that this is an appeal 'from [emphasis in original] the Appellate Division's April 29, 31 2008, Nash decision.' ... It is, in fact, an appeal from the final judgment in favor of Mr. Ruiz, entered in the office of the County Clerk on January 20, 2010. [Tlhe appeal [to this Court in Ruiz} is not taken from that interlocutory April 2008 liability ruling itself." As noted earlier, the Port Authority could have pursued relief from Ms. Nash's Final Judgment, and a review of the Interim Order of the Appellate Division to her in her case, in this Court even after it elected to pursue relief from it in the Appellate Division, but it chose, instead, to prosecute its appeal from Ms. Nash's Final Judgment, and seek review of the Appellate Division's Interim Order April 29, 2008, in so far as it affirmed the verdict of liability separately to her in her case, in the Appellate Division. When it made that decision, its appeal in the Appellate Division was the sole proceeding in which it could seek reversal of the Appellate Division's April 29, 2008 Interim Order as to her in her case, first in that court or, in the even that court affirmed it, on a further appeal of that affirmance to this Court. While this Court allowed Ms. Nash to participate on the 32 Ruiz appeal if her counsel so "elected, ,,16 it agreed with the Port Authority and did not accord her party status on the Ruiz Appeal. D. The Port Authority Prosecuted its Appeal from Ms. Nash's Final Judgment Before the Appellate Division, but Limited It, and the Appellate Division Affirmed Ms. Nash's Final Judgment "Insofar as" The Port Authority Had Appealed from it On October 15, 2010, the Port Authority finally perfected its appeal from Ms. Nash's final Judgment to the Appellate 16 Ms. Nash's counsel so "elected," and filed a brief, and participated in an oral argument on the Ruiz appeal on June 1, 2011, the day before the Appellate Division affirmed Ms. Nash's Final Judgment "insofar as" the Port Authority had appealed from it. Since not even a stipulation by the Port Authority could have conferred jurisdiction over the Port Authority's appeal of Ms. Nash's Final Judgment on this Court (Haverstraw Park, Inc. v. Runcible Properties Corporation, 33 N.Y. 637, 301 N.E.2d 553, 347 N.Y.S.2d 585 (1973)), that election by Counsel could not have conferred, and did not confer, jurisdiction over the Port Authority's appeal of Ms. Nash's Final Judgment on this Court. See, also, Arthur Karger, The Powers of the New York Court of Appeals (Rev. 3rd Ed.), § 1:5: "Since the jurisdiction of the Court of Appeals is defined by the Constitution, the limitations there imposed are considered inherent and not susceptible of waiver by the parties, or, indeed by the Court itself." The Port Authority's and its insurance company's lawyers, the same on both this and the Ruiz appeal, huge law firms with hundreds of lawyers, and extensive experience in appeals to this Court were well aware of this rule, cannot claim otherwise. But they might, and if they did, two things would be evident. First, any such claim would not be credible. Second, any such disingenuous claim would be of no legal effect. 33 Division. In the Brief it filed on that appeal the Port Authority set forth only one "Question Presented," to wit: "Is the Port Authority, like all other public corporations, eligible for a specialized rate of post verdict and post Judgment interest." (Affirmation of Louis A. Mangone, Esq., supra, p.4, fn. 2, A211.) Consistent with its Brief, the documents in the Appendix the Port Authority filed on that appeal dealt only with the assessment of interest issue. In her answering Brief Ms. Nash asserted (1) that since the Port Authority, as its attorneys had affirmed to this Court on October 5, 2010, and to the Appellate Division in its Brief of April 23, 2010, had appealed there "from 'each and every part'" of Ms. Nash's Judgment, and (2) that it could raise on that appeal "any adverse order or ruling affecting the judgment," "without limitation," including that the April 29, 2008, Interim Order was erroneous as to Ms. Nash, (3) the fact that it limited its Brief to the single issue of the assessment of interest on the awards made against it at the fixed rate of 9% pursuant to CPLR 5004, meant that it had limited its appeal of Ms. Nash's Final Judgment to that issue only, and had waived and abandoned any 34 claim of error as to any other portion of Ms. Nash's Final Judgment. The Port Authority's Reply Brief was similarly limited to the claim that the only error it was claiming in Ms. Nash's Final Judgment was the assessment of interest. Its oral argument on that appeal, held before the Appellate Division on April 14, 2011, also was so limited. All these proceedings, that the Port Authority took in its prosecution of its appeal from Ms. Nash's Final Judgment in the Appellate Division, in pursuit there of the reversal of Ms. Nash's Final Judgment and its liability to her, took place while it was pursuing its separate appeal from Mr. Ruiz's Final Judgment in this Court, and after Ms. Nash had submitted, in February, 2011, the Brief in connection with the Ruiz appeal that this Court had allowed her counsel to elect to do. In its Decision and Order of June 2, 2011, affirming Ms. Nash's Final Judgment, the Appellate Division dealt only with the interest issue, the only issue as to which the Port Authority claimed error, and held that Ms. Nash's Final Judgment "insofar as appealed from as limited by the Briefs, awarding post-judgment interest at the fixed rate of nine 35 percent per annum, unanimously affirmed." E. The Port Authority Refused to Seek Leave to Appeal the Affirmance of Ms. Nash's Final Judgment to this Court, and Abandoned it and All Claims it Was Not Liable to Her A copy of the Appellate Division's June 2, 2011, Decision and Order, with Notice of its Entry, was served on the Port Authority by hand on June 9, 2011. (A144.) The Port Authority's time to seek leave to appeal it to this Court expired at midnight, July 12, 2011, without it having sought such leave. Thus, as of 12:01 a.m. July 13, 2011, the Port Authority had irrevocably waived and abandoned any claim of any error in, and review of, Ms. Nash's Final Judgment. That included a waiver and abandonment of its pursuit of an Order reversing the Appellate Division's April 29, 2008, Decision in and as to Ms. Nash's case. Ms. Nash's affirmed Final Judgment then became final and binding on the Port Authority, and beyond any further review by any Court. Her case came to an end. The Port Authority had the Brief Ms. Nash's counsel elected to submit in connection with the Ruiz appeal when it decided it would not seek leave to appeal the Appellate Division's affirmance of Ms. Nash's Final Judgment to this 36 Court, Ms. Nash does not know how this Court would have answered the questions raised by her case that were not before it on the Ruiz appeal. However, the issue is moot because the Port Authority clearly was fearful of how this Court might have answered them, and did the one thing that was certain to finally and conclusively preclude this Court from considering them: it abandoned its appeal. While the damages awarded to Ms. Nash on her claim, about $5,400,000, are significant to her as an individual, they paled in comparison to the claims of the commercial tenants of the World Trade Center, whose claims for "business interruption" losses were in the hundreds of millions of dollars. Ms. Nash believes the underlying reason the Port Authority did not seek leave to appeal the Appellate Division's June 2, 2011, affirmance of her Final Judgment to this Court, just as it refused to seek leave to appeal her Final Judgment directly to this Court, but instead, sought such leave as to Mr. Ruiz's later Entered Final Judgment, was that it wished to maximize its chances of prevailing in this Court, and concluded that Ms. Nash's claim presented the 37 worst case it could put before this Court and created the greatest risk it would lose here and have to respond (rather its insurance company would have to respond) to the large business interruption claims of tenants of the World Trade Center that were then pending. Abandoning its appeal from Ms. Nash's affirmed Final Judgment, and the pursuit of an order that would reverse the April 29, 2008, Decision of the Appellate Division that upheld the Port Authority's liability to Ms. Nash in her case, clearly was a price, and, relatively speaking, a small one, the Port Authority and its insurance company were willing to pay to increase their chances of avoiding hundreds of millions of dollars of liability to the business interruption plaintiffs represented by the Steering F. Despite the Fact it Had Abandoned its Appeal from Ms Nash's Affirmed Final Judgment and Waived Any Claim it Was Not Liable to Her on Her Affirmed Final Judgment Against it the Port Authority Moved for a Stay of Enforcement of it On July 20, 2011, weeks after the Port Authority, for the second time, and with finality, precluded this Court from reviewing Ms. Nash's Final Judgment and the merits of her claim, the Port Authority made a motion in this Court, under 38 the caption of the Ruiz appeal, in which it asked this Court to declare that the enforcement of Ms. Nash's affirmed Final Judgment, the same affirmed Final Judgment that it deliberately precluded this Court from reviewing, was stayed pending this Court's determination of the Ruiz appeal. The Port Authority's claim on that motion was that, despite its refusal to seek leave to appeal the affirmance of Ms. Nash's Final Judgment to this Court, her Final Judgment nevertheless was before this Court, and its enforcement was automatically stayed pursuant to CPLR 5519(a) (5), by virtue of the Port Authority's appeal of Mr. Ruiz's final Judgment to this Court. Alternatively, it sought a discretionary stay. The Port Authority claimed a stay was necessary because, it said, if this Court later reversed its liability to Mr. Ruiz on its then pending appeal from his final Judgment, Ms. Nash's affirmed Final Judgment, and its liability to her, also would be reversed. The Port Authority's motion papers appear at A179-196. Ms. Nash opposed that motion on the ground that because the Port Authority had declined to seek review of the 39 Appellate Division's June 2, 2011, affirmance of her Final Judgment in this Court, and abandoned its appeal, neither this Court nor any other had jurisdiction to stay enforcement of, or grant the Port Authority any relief from or as to, Ms. Nash's affirmed Final Judgment. Ms. Nash's opposition papers, the Affirmation of Louis A. Mangone, supra, appear at A201-252. At the time that motion was made the Bond the Port Authority had posted on July 2, 2010, pursuant to the Appellate Division's July 1, 2010, Order, that, together with the Notice of Appeal it filed in the Appellate Division, stayed the enforcement of Ms. Nash's Judgment pending that appeal, had expired after the Appellate Division affirmed it and the Port Authority abandoned any further appeal, and Ms. Nash was fully at liberty to enforce her Judgment. 17 Out of 17 In connection with its July 20, 2011, motion for a stay the Port Authority submitted what it called a "Rider" (A317) to the original Bond, that by then was payable by its terms. The Port Authority claimed, frivolously, that that Rider stayed the enforcement of Ms. Nash's Judgment pending the determination of the motion for a stay it made in this Court. The absolute statutory prerequisite for any stay of enforcement of any judgment or order under CPLR 5519(a)is the service and filing of a Notice of Appeal from it, or the filing of a motion for leave to appeal, followed by compliance with one of the other statutory prerequisites set 40 respect for this Court Ms. Nash did not seek to enforce her Judgment while the motion for a stay was before it. As noted earlier, in accordance with permission granted by this Court, Ms. Nash submitted a Brief in Ruiz, and participated in an oral argument on it in this Court on June 1, 2011; 6 weeks after the Port Authority argued its appeal from Ms. Nash's Final Judgment in the Appellate Division, and the day before the Appellate Division rendered its decision that affirmed Ms. Nash's Final Judgment "insofar as" the Port Authority had appealed from it. Only five members of this Court heard that oral argument (two Judges, Chief Judge Lippman and Judge Smith had recused themselves), and this Court was not able to reach a Decision. This Court vouched in two additional Judges and scheduled another oral argument for August 24, 2011. (A97.) Well before August 24, 2011, Ms. Nash's counsel informed this Court and the attorneys for the Port Authority forth in CPLR 5519. Since the Port Authority had refused to file a motion for leave to appeal the affirmance of Nash's Final Judgment to this Court, the "Rider" was "a nullity" The Review Company v. General Bronze Corporation, 37 Misc.2d 209, 236 N.Y.S.2d 827, 829 (S. Ct. Kings Co. 1962). It did not effect any stay of enforcement of Ms. Nash's affirmed Final Judgment, as this Court held on September 22, 2011. 41 that because Ms. Nash's action had been finally determined by the Appellate Division's June 2, 2011, affirmance of her Final Judgment, and that since the Port Authority refused to seek leave to appeal it, her case was over, she that she had no interest in the outcome of the Ruiz appeal and would not participate in the August 24, 2011 oral argument. She did not. G. The "In the Pipeline" Exchange in this Court in Which the Port Authority Admitted That it Could Not "Unravel" Ms. Nash's Affirmed Final Judgment, as to Which it Had Previously and Voluntarily Ended the Appeals Process Earlier, Even If this Court Would Reverse its Liability to Mr. Ruiz On August 24, 2011, during the oral argument on the Ruiz appeal, Judge Ciparik initiated an exchange with the attorney for the Port Authority in which he admitted that the premise of the Port Authority's July 20, 2011, motion for a stay of enforcement of Ms. Nash's affirmed Final Judgment, namely that if this Court were to reverse the Port Authority's liability to Mr. Ruiz, as it subsequently did, then the Port Authority's liability to Ms. Nash on her affirmed Final Judgment also would be reversed, was contrary to law, and that he knew it During the course of that argument Judge Ciparik asked 42 the attorney for the Port Authority, directly: If this Court were to reverse the Port Authority's liability to Mr. Ruiz on that appeal, as it later did, would such a reversal "unravel" any final dispositions in any of the other 1993 Bombing cases, Ms. Nash's affirmed final judgment among them, that had previously been made, and were not "in the pipeline."? In response, the Port Authority's attorney admitted to this Court that any reversal of its liability on the Ruiz appeal would apply only to cases that were still "in the pipeline" when and if this Court reversed the Port Authority's liability to Mr. Ruiz on that appeal. He further admitted that any such reversal would not "unravel" judgments in cases like Ms. Nash's that were not "in the pipeline" if and when this Court reversed its liability to Mr. Ruiz. That was a correct statement of the applicable law. (See discussion, and cases cited at pages - below.) The "in the pipeline" exchange between the Port Authority's attorney, Mr. Rothman, and Judge Ciparik that day was as follows: "[Judge Ciparik to Mr. Rothman]: If we were to rule in your favor this would not unravel the twenty or so, whatever settlements that have been made in the past? 43 "[Mr. Rothman]: No "[Judge Ciparik] ... Future cases, cases that are still in the pipeline. "[Mr. Rothman]: Well, it would effect cases that are still in the pipeline."18 As the Port Authority knew, and Judge Ciparik knew, and as all the Judges of this Court sitting that day knew, Ms. Nash's affirmed Final Judgment ceased to be "in the pipeline" on July 13, 2011, because the Port Authority had decided, intentionally, to abandon its appeal of it by refusing to seek leave to appeal it to this Court. Of course, Ms. Nash's affirmed Final Judgment also was not "in the pipeline" on September 22, 2011, when this Court issued its decision reversing the Port Authority's liability "as to Ruiz". In the Opinion issued in the Ruiz case on September 22, 2011, right after it announced it was reversing the Port 18 The entire oral argument that day, including this exchange, was recorded by this Court. The audio/video recording is available in the Oral Arguments Archive for August 24, 2011, on this Court web site and can be viewed at www.courts.state.ny.us/ctapps/arguments/2011Aug.11/Aug11_0A.h tm. The "in the pipeline" exchange was initiated by Judge Ciparik at approximately 55:14, of the recording of the argument, and ended at approximately 55:40. 44 Authority's liability "as to Ruiz," the majority specifically declared, in footnote 7, that "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.// As also noted earlier, that same day this Court unanimously dismissed the Port Authority's July 20, 2011, motion for a stay of enforcement of Ms. Nash's affirmed Final Judgment, holding that it did "not have jurisdiction to entertain the motion," let alone grant the Port Authority any relief from or as to it, because the Port Authority refused to seek any relief from its affirmance in this Court, and thus "no appeal or motion for leave to appeal in the Nash action is pending before this Court (see CPLR 5519)." H. The Port Authority Then Moved in the lAS Court for an Order Vacating Vacate Ms. Nash's Affirmed Final Judgment on the Claim That this Court, in the Ruiz Decision, Had "Unraveled" it On September 26, 2011, four days after this Court decided that it had no jurisdiction to stay the enforcement of Ms. Nash's affirmed Final Judgment, or grant the Port Authority any relief from or as to it, and expressly held, in 45 the Ruiz Decision itself, that "The Nash action is beyond the scope of this [the Ruiz] appeal," the Port Authority, acting by the very same attorneys who, a month earlier, admitted to this Court that should it reverse its liability on the Ruiz appeal such reversal would not "unravel" any judgments made earlier that, like Ms. Nash's, were not "in the pipeline" when the Ruiz Decision was rendered, moved by an ex parte Order to Show Cause in the lAS Court for an order vacating Ms. Nash's affirmed Final Judgment, and staying its enforcement, claiming that this Court's decision on the Ruiz appeal had "unraveled" Ms. Nash's previously affirmed Final Judgment. (AI 7-18. ) 19 As referred to earlier, in the Moving Affirmation the Port Authority's attorneys submitted to the lAS Court in support of that Order to Show Cause (A19-21), those attorneys (1) did not attached a copy of, or mention, the June 2, 2011, Decision of the Appellate Division that affirmed Ms. Nash's Final Judgment, (2) did not mention the fact that the Port 19 On that day Ms. Nash was awaiting a response from the Port Authority to her inquiry, made as a courtesy, as to whether it would satisfy her Affirmed Final Judgment or require her to engage in a formal collection process. 46 Authority had refused to seek leave to appeal that affirmance to this Court, (3) did not attached a copy of, or mention, the Decision rendered by this Court on September 22, 2011, in which this Court dismissed the Port Authority's motion for a stay of enforcement of Ms. Nash's affirmed Final Judgment on the basis of its Decision on the Ruiz appeal, because, since "no appeal or motion for leave to appeal in the Nash action is pending before this Court (see CPLR 5519)," it did "not have jurisdiction to entertain the motion," let alone grant the Port Authority a stay or any relief from or as to it. Then, despite this Court having denied its previous request for a stay of enforcement of Ms. Nash's affirmed Final Judgment, the Port Authority's attorney told the lAS Court: "15. No prior application fore the relief requested in the Port Authority's motion has been made to this [the lAS court] or any other court." (A21. ) As noted above, on the morning of September 26, 2011, the lAS court signed the Order to Show cause presented to it by the Port Authority and stayed the enforcement of Ms. Nash's affirmed Final Judgment. By Order dated May 15, 2012, the lAS Court granted the 47 Port Authority's motion, vacated Ms. Nash's affirmed Final Judgment, and dismissed her Complaint, on the ground that in its Decision in the Ruiz appeal this Court case had "specifically eviscerate[dl any judgment [including Ms. Nash's affirmed Final Judgment], holding or finding of liability involving tortious liability on behalf of the Port Authority in the 1993 World Trade Center bombing." The lAS court did not say it was exercising any discretion in the matter, or cite any authority other than this Court's decision on the Ruiz appeal. As noted, the Appellate Division, in its June 2, 2011 affirmance of Ms. Nash's Final Judgment, affirmed it "insofar as" the Port Authority had appealed from it. That was a finding that the Port Authority had waived and abandoned all claims of error in Ms. Nash's Final Judgment except the assessment of interest at the fixed rate of 9%. The Port Authority could have contested that ruling in two ways: it could have moved in the Appellate Division to reargue the issue, or it could have claimed, on an appeal of that ruling to this Court, that the finding was erroneous because it was not required to specifically challenge the finding in Ms. 48 Nash's Final Judgment that it was liable to her on her claim on that appeal because the Appellate Division had previously reviewed that issue. It did neither. It did not claim there was any error in the Appellate Division's affirmance of Ms. Nash's Final Judgment, and it refused to seek leave to appeal it to this Court. Instead, it allowed that decision, including the finding in it that the Port Authority had waived and abandoned there all claims of error in Ms. Nash's affirmed Final Judgment except as to the assessment if interest, to become the law of the case, that could not be reviewed, "diminished or destroyed" (Sears, supra,) or reversed, particularly by a court, here, the lAS court, of inferior jurisdiction. Nor could it, or the lAS court, resurrect or reinstate the defense of no liability to Ms. Nash on her claim against it that the Appellate Division earlier held the Port Authority had waived and abandoned (and that it waived and abandoned again when it refused to appeal that affirmance to this Court), let alone then and grant the Port Authority summary judgment on that defense. Kirkpatrick Horne for Childless Women v. Kenyon, 269 App. Div. 179, 594 N.Y.S. 504, 49 504 (1 st Dep't 1924): "The Special Term did not have jurisdiction, after the judgment had been entered in the County Clerk's office upon the order of the Appellate Division, to vacate that Judgment annul the complaint, and grant a new trial. u On Ms. Nash's appeal of the lAS court's May 15, 2012, Order the majority in that court ignored that fact that the lAS court, a court of lesser jurisdiction, had actually reversed the final decision of the Appellate Division in its June 2, 2011, affirmance of Ms. Nash's Final Judgment and impermissibly resurrected and reinstated the Port Authority's defense that it was not liable to Ms. Nash on her claim. Like the lAS Court before it, the majority in the Appellate Division ignored this Court's decision that it had no jurisdiction to stay the enforcement of Ms. Nash's affirmed Final Judgment, or grant the Port Authority any relief from or as to it. The majority actually rejected the rationale on which the lAS court vacated Ms. Nash's affirmed Final Judgment, which was that it was merely performing a ministerial act and vacating a final judgment this Court had previously "eviscerated. u The majority then went on to 50 affirm the decision of the lAS court on a completely different, though equally erroneous and impermissible ground, that was actually contrary to the rationale of the lAS Court. Where the lAS Court held that this Court's decision in Ruiz had "eviscerate[d]" Ms. Nash's affirmed Final Judgment, and thus it had to vacate her affirmed Final Judgment to carry out what it said this Court had already determined, something that did not and could not have occurred, the majority in the Appellate Division vacated Ms. Nash's affirmed Final Judgment on the ground that Ms. Nash's affirmed Final Judgment, could, and would be, vacated by applying the reasoning of this Court's decision in Ruiz in a future, appellate review of it on its merits; something that would not and could not possibly occur. Neither the lAS Court nor the Appellate Division had any jurisdiction to review Ms. Nash's affirmed Final Judgment, let alone grant the Port Authority any relief from or as to it. The Port Authority voluntarily abandoned its effort to seek any relief from Ms. Nash's Final Judgment, and put an end to her case, by deliberately refusing to seek leave to appeal from the Appellate Division's affirmance of it to this 51 Court. The Port Authority itself allowed Ms. Nash's affirmed Final Judgment to become res judicata between it and her, and precluded any further review of it, under any rubric in any court. To the extent the lAS Court or the Appellate Division had any discretion to review Ms. Nash's affirmed Final Judgment, and neither did, their purported exercise of discretion was arbitrary and capricious, and would have been a clear abuse as a matter of law. 52 ARGUMENT POINT I WHEN THE PORT AUTHORITY DECIDED, VERY DELIBERATELY, TO NOT SEEK LEAVE TO APPEAL THE APPELLATE DIVISION'S AFFIRMANCE OF MS. NASH'S FINAL JUDGMENT TO THIS COURT IT ALSO, VERY DELIBERATELY, (A) ALLOWED MS. NASH'S FINAL JUDGMENT TO BECOME RES JUDICATA ON THE MERITS OF HER CLAIM AGAINST IT, TO WIT, "A CONCLUSIVE DETERMINATION OF ALL "QUESTIONS OF BOTH LAW AND FACT THERE LITIGATED," "THE LEGAL EFFECT" OF WHICH COULD NOT BE "DESTROY OR DIMINISH" EVEN IF IT "WAS ERRONEOUS," (B) WAIVED AND ABANDONED ITS PURSUIT OF AN ORDER REVERSING THE APRIL 29, 2008, INTERIM ORDER OF THE APPELLATE DIVISION IN MS. NASH'S CASE, AND ALL CLAIMS OF ERROR IN HER FINAL JUDGMENT, (C) DEPRIVED THIS AND ALL OTHER COURTS OF SUBJECT MATTER JURISDICTION TO "DESTROY OR DIMINISH" IT, AND (D) PUT AN END TO MS. NASH'S CASE When the Port Authority refused to seek leave to appeal the Appellate Division's affirmance of Ms. Nash's Final Judgment to his Court it deliberately and voluntarily abandoned any and all claims that it was not liable to her on her claim against it, precluded any further review of her claim by any court under any guise, and put an end to her case. The decisions of the lAS court and the Appellate Division in this case are the first ever in this State in 53 which a Final Judgment Entered by a court of competent jurisdiction, and was affirmed on appeal by a court of competent jurisdiction, from which affirmance the judgment debtor refused to seek any further appeal, was vacated on the basis of a decision in another case rendered after the appeals process as to it had been terminated. The decision of the Appellate Division appealed from contravenes the fundamental principles of res judicata and finality, and the strict and inviolable jurisdictional requirement that a Notice of Appeal from an adverse Judgment be filed within the statutory time limits in order to seek, let alone secure, any modification, diminishment, reversal, or vacate it. The applicable rules have been in effect in this State, and that this Court has upheld them, for decades if not centuries. It is respectfully suggested that the decision of the Appellate Division appealed from must be reversed. A. Ms. Nash's Affirmed Final Judgment Was Res Judicata Between Her and the Port Authority on the Merits of Her Claim Against It; to Wit, "A Conclusive Determination of Questions of Both Law and Fact There Litigated," "The Legal Effect" of Which Could Not Be "Destroy[edl or Dirninish[edl" Even if it "Was Erroneous" As the dissent below noted: 54 "Nash / s judgment having become final, the Port Authority cannot avoid its enforcement (see Lacks v Lacks, 41 NY2d 71, 71, 22 [1976J [(T) he judgment was affirmed by the Appellate Division on October 26, 1972. Leave to appeal to te Court of Appeals was denied by both the Appellate Division and this [CJourt. The final judgment was thus beyond further review'J) The Court has stated that to vacate a final judgment after the right to appeal had been exhausted 'would be to undermine significantly the doctrine of res judicata, and to eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect.' (id. At 77)" (A464-465.) The dissent clearly was correct. In Lacks v. Lacks, 41 N.Y .. 2d 71, 77, 390 N.Y.S.2d at 879 (1976) this Court held that: "[TJhe judgment was affirmed by the Appellate Division on October 26, 1972. Leave to appeal was denied. The final judgment was thus beyond further review." (41 N.Y.S.2d at 73/ 390 N.Y.S.2d 876-877.) "The point is that the litigation having gone to final judgment, the right to review by appeal having been exhausted, that is and should be the end of the matter" N.Y.S.2d at 879.) (41 N.Y.S.2d at 77, 390 In Lacks this Court further held that to vacate an affirmed final judgment after the right to appeal has "been exhausted" (a fortiori here, where it was "exhausted" by virtue of the defendant Port Authority's deliberate and 55 voluntary refusal to seek review of the affirmance of Ms. Nash's Final Judgment in this Court), "would be to undermine significantly the doctrine of res judicata, and to eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect. H (41 N.Y.S.2d at 77, 390 N.Y.S.2d 879.) Further, as this Court held in Slater v. American Mineral Soirits Company, et al., 33 N.Y.2d 443, 310 N.E.2d 300, 354 N.Y.S.2d 620 (1974): "The conclusive effect of a final judgment is not to be disturbed by a subsequent change in decisional law. Indeed, to hold otherwise might be to raise constitutional issues. H (33 N.Y.2d at 447, 354 N.Y.S.2d at 623.) In Slater, third party complaints for apportionment had been dismissed prior to this Court's decision in Dow v. Dole. Those dismissals had not been appealed, and other elements of those cases were still pending in the Courts. The question before this Court in Slater was whether or not the "principal of apportionment of liability that [recently had been] articulated H by it in Dow v. Dole should be applied to reopen the question of apportionment in cases 56 where it earlier had been "finally concluded," cases that, unlike Ms. Nash's, were still pending for other purposes when this Court decided Dow v. Dole, "merely because" unlike here, no final judgments had been entered on the dismissals. (33 N.Y.2d at 445, 446.) In the present case, of course, Ms. Nash's final Judgment not only had been Entered, it had been appealed, and affirmed on appeal, and as to which the Port Authority had deliberately abandoned the Appeals process, all before this Court rendered its decision on the Ruiz appeal. In Slater, this Court affirmed the dismissals of newly filed third party complaints for apportionment, on res judicata grounds, holding that "when no appeal was taken from the" order dismissing the original third party complaint "the claims [in it] were in final judicial repose." 447, 354 N.Y.S.2d at 623.) This Court went on to hold that: (33N.Y.2dat "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 57 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. ) Slater applied the well settled principles of law articulated by this Court, uniformly, for many decades, and is one of many decisions of this Court that uniformly require that the decision appealed from be reversed. In Sears Roebuck & Co. v 9Ave. 31-St. Corp., 274 N.Y. 388, 400-401, 9 N.E.2d 20 (1937), in a prior proceeding in the same dispute between the same parties, the Appellate Division had held, in an Order made in November, 1931, (1) that a Receiver appointed in a foreclosure proceeding had a right to demand that Sears pay "occupational rent" to him, even though the foreclosure had not been effected, but (2) the Receiver's demand for payment for use and occupancy to him was a disaffirmance of the lease that gave Sears "an option either to pay reasonable rent or to vacate and surrender possession of the premises to the receiver." (274 N.Y. at 395.) Sears, just like the Port Authority here, did not seek leave to appeal the 1931 Order of the Appellate Division to this Court. (274 N.Y. at 401.) 58 Pursuant to the 1931 Order Sears elected to remain in possession of the premises until December 31, 1931, the end of the term of the original lease. It paid the reasonable rent to the Receiver through that date and subsequently entered into a new lease at a reduced rent. (274 N.Y. at 395.) After the initial lease ended on December 31, 1931, Sears initiated the proceeding that was the subject of the reported decision in this Court. In it Sears sought to collect damages for what it said were breaches of the lease by the landlord. In that later suit this Court held that even though (1) it had held, "in a subsequent case between other parties," that the Appellate Division's 1931 Order that Sears pay a reasonable rent to the Receiver (which Sears did) "was erroneous" because the foreclosure had not then been effected (274 N.Y. at 399) , (2) Sears' payments pursuant to that erroneous Order impacted the damages issues in the action by Sears that then was before it, (3) because Sears, like the Port Authority here, had not sought leave to appeal the 1931 Order of the Appellate Division to this Court, it was conclusive as between Sears and the Landlord, (4) the conclusive effect of the 1931 Order of the Appellate Division as between the parties to it - 59 there, Sears and the landlord, here, Ms. Nash and the Port Authority - could not be "change[edl," "diminish[edl" or "destroy[ed" "even though we_may assume that it was erroneous." In Sears this Court held: "A decision of a court of competent jurisdiction determines conclusively the questions of law and fact necessarily involved in the dispute between the parties to the litigation. *** "We cannot destroy or diminish the legal effect of the earlier decision. It remains as between the parties a conclusive determination of questions of both law and fact there litigated. " (274 N.Y. at 400-401.) *** "This Court might have reversed [the 1931 Order of the Appellate Division] if [it] had been brought here for review ... " (274 N.Y. at 401.) *** "None the less, it must be remembered that we did not and could not change the conclusive effect of the earlier decisions of the intermediate appellate court which had not been brought UP here for review. [274 N.Y. at 401] "That order [of November, 1931] was a decision, even though we may assume that it was erroneous, by a court of competent jurisdiction. Though it was not a final determination of the foreclosure action and, therefore not appealable except by permission 60 of the Appellate Division, it was intended to be a final determination of the questions necessary presented ... [and] was binding on the parties to the" action; there Sears and the Landlord, here, Ms. Nash and the Port Authority. (274 N.Y. at 401-402.) Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803 (1976) is another in the unbroken line of decisions of this Court that require the reversal of the decision below. There, a pre- trial appeal by the defendant to this Court from an order of the Appellate Division on a choice of law question was dismissed for defendant's failure to perfect it within the required time ("want of prosecution"). The trial took place and resulted in a verdict for the plaintiff on which a judgment was entered. The defendant then appealed the post trial judgment on the ground that the Appellate Division's previous determination of the choice of laws question, from which, like the Port Authority here, it declined to seek an appeal in this Court, was erroneous. This Court dismissed the post trial appeal, holding: "{W]e hold the dismissal of an appeal for want of prosecution to be on the merits of all claims which could have been litigated had the [first] appeal been timely argued or submitted" (38 N.Y.2d at 355, 379 N.Y.S.2d at 807.) "Were the rule otherwise, the party who obtained the 61 judgment below could be deprived of that judgment until a later time by the act of the losing party in appealing and disregarding the appeal." (38 N.Y.2d at 353, 379 N.Y.S.2d at 805.) The injustice that this Court found would be unacceptable in Bray v. Cox is even greater when, as here, a judgment debtor deliberately decided, as a matter of its overall litigation strategy, to not seek leave to appeal from an appellate affirmance of a Final Judgment against it, and abandoned any further appellate review of the merits of that Judgment, and later moved to vacate that Judgment on the basis of a later decision in another case. If that were the law a judgment debtor, like the Port Authority, that refused to pursue an appeal from the affirmance of a Final Judgment, and thus abandoned any claim of error in that Judgment, and in any underlying non-final Order, could "deprive the party who obtained the Judgment," and even, as here, its affirmance in an appellate court, essentially forever. There would never be finality, or res j'udicata, in any action, with respect to any part of any Judgment (including, for example, the amount of damages assessed), even a Final Judgment that had been affirmed on appeal and as to which further appeals and all claims of error, had been waived. 62 Were that the law (1) the jurisdictional requirement that, to seek relief from a final judgment or order, a notice of appeal must be filed within the statutorily established period would be vitiated, (2) there would be no such thing as res judicata, (3) no Judgment would ever be final, and (4) no Judgment Creditor could ever have the benefit of their affirmed Final Judgment, because it would always be subject to a later motion to vacate, whether well founded or not. The chilling effect of such a situation, namely that a Sword of Damocles would forever hang over the head of judgment creditors who had judgments as to which the judgment debtors had abandoned their appeals and voluntarily ended the appellate process, would deprive judgment creditors like Ms. Nash of due process. This may have been what this Court was referring to when it said, in Slater, supra, that "The conclusive effect of a final judgment is not to be disturbed by a subsequent change in decisional law. Indeed, to hold otherwise might be to raise constitutional issues." In re Huie, 20 N.Y.2d 568, 572, 285 N.Y.S.2d 610 (1967) is another of the decisions of this Court that require reversal of the decision below. In Huie, this Court, citing 63 its earlier decision Sears Roebuck & Co., held that an original decision "determining the rights and positions of the parties should [not] be reversed on a motion for reargument made after the expiration of the time to appeal on the sole ground that, in the interim, an appellate court has overruled its own or another statement of existing law." 76 N.Y.2d at 572, 265 N.Y.S.2d at 617)In Huie this Court went on to declare that "While this result might at times seem harsh, there must be an end to lawsuits." (Ibid. ) If the law were as the Port Authority says it is, namely that an affirmed Final Judgment as to which all appellate proceedings had ended (even where, as here, they were ended by an affirmative, voluntary decision by the judgment debtor to abandon them for reasons of its overall litigation strategy) could be vacated as a result of a decision rendered later in another action, there would never "be an end to lawsuits." This Court's decision in Deeves v. Fabric Fire Hose Company, 14 N.Y.2d 633, 249 N.Y.S. 2d 423 (1964) is another of unbroken line of cases that establish that the decision of majority below was erroneous as a matter of law and must be reversed. In Deeves this Court affirmed a Decision of the 64 Appellate Division Second Department (19 A.D.2d 735, 242 N.Y.S.2d 955, 956 (1963)), that held: "on a motion for reargument made after the expiration of the time to appeal the original decision determining the rights and position of the parties should not be reversed [or vacated or stayed] slffiply because an appellate court, in the interim, in another case, has overruled its own or another statement of existing law. (1 Carmody Wait, New York Practice, pp. 680-682, and cases there cited." In Haverstraw Park, Inc. v. Runcible Properties Corporation, supra, 33 N.Y. 637, 347 N.Y.S.2d 585, this Court again held that the 30 day time period for filing a notice of appeal is jurisdictional and nonwaivable even by stipulation of the parties. Failing to file within the statutory period, this Court held, deprived it of the power to consider the decision from which an appeal was not timely taken, and that even a stipulation of the parties "cannot confer jurisdiction to consider an untimely motion." See, also, Ocean Ace. & Guarantee. Corp. v. Otis Elevator Co., 291 N.Y. 254, 52 N.E.2d 421 (1943), Pollak v. Port Morris Bank, 257 N.Y. 287, 177 N.E,865 (1931), People v. Thomas, 47 N.Y.2d 37, 43, 389 N.E. 2d 1094, 416 N.Y.S.2d 573, 576, (1979), and Low, et al. v. Bankers' Trust Co. et al., 265 N.Y. 264, 65 192 N.E.406 (1934). In all these cases too this Court held that the failure to file or serve a notice of appeal, which is what the Port Authority did here, goes to, i.e., deprives the courts of, subject matter jurisdiction to entertain any subsequent attack on a judgment, on any ground. Prof. Siegel, summarizing the applicable rule, put it this way: "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 ,,20 B. The Port Authority, by Refusing to Seek Leave to Appeal the Appellate Division's Affirmance of Ms. Nash's Final Judgment to this Court, Waived and Abandoned its Pursuit of an Order Reversing the April 29, 2008, Order of the Appellate Division That Affirmed the Verdict of Liability Entered in Ms. Nash's Case, Indeed, Waived and Abandoned All Claims of Error in Ms. Nash's Final Judgment and Was Precluded, as a Matter of Law, from Resurrecting Any of Those Claims or Pursuits As the dissent below noted: 20 Practice Commentary C5513:1 (1995), McKinney's Consolidated Laws of New York CPLR 5513. 66 "The Port Authority did not seek leave to appeal to the Court of Appeals from [the June 2, 2011 order that affirmed Ms. Nash's Final Judgment], which, of course would have brought up for review not only the issue of damages, but any issue necessarily affecting the Judgment, including the interim liability determination" of liability by the Appellate Division of April 29, 2008. (A461-462.) "The Port Authority made a strategic decision not to appeal either the liability or the damages determination in Nash ... The Port Authority ... abandoned any claim that it was not liable to Nash " (A465.) It is settled law, as this Court has held, that a party who abandons a claim of error, or the pursuit of any remedy on an appeal (or at a trial) is precluded, as a matter of law, from later resurrecting that claim or pursuing that remedy in any guise in any court. Flanagan v. Bd. of Ed. Commack U. Free Sch., supra, 47 N.Y.2d at 617, 419 N.Y.S.2d at 919 (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. Yet that is exactly what the lAS court and the Appellate Division did: they resurrected and reinstated the Port Authority's defense to Ms. Nash's claim, that it did not have liability to her on it, that the Port Authority had 67 irrevocably waived and abandoned, and then granted the Port Authority summary judgment on it on the flatly erroneous presumption that this Court had "eviscerated" it (the lAS court), or would "eviscerate" on some further appellate review (the majority on the Appellate Division). The Port Authority's deliberate and intentional refusal to seek leave to appeal the affirmance of Ms. Nash's Final Judgment to this Court was at least as much of an abandonment of all claims of error, on the merits, in that Judgment as refusing to timely perfect an the appeal that this Court (Bray v. Cox, supra) of a failure to plead a defense, even a statutory defense (Flanagan, supra), that this Court has determined was such an abandonment. That deliberate abandonment precluded the Port Authority from reinstating or "resurrecting" (Adams Drug Co. Inc. v Knobel, 172 A.D.2d 470, 569 N.Y.S.2d 19, 20 (1 st Dep't 1991), in any court under any rubric, any claim of error in Ms. Nash's Final Judgment, including that it was not liable to her on her claim against it. 68 C. Because this Court's Decision on the Ruiz Appeal Was Rendered after the Port Authority Had Put an End to the Appellate Process as to Ms. Nash's Affirmed Final Judgment, I.e., Had Deliberately Taken it out "Of the Pipeline," this Court's Decision in Ruiz Could Not Be Applied to Vacate, or "Destroy" or "Diminish" the Conclusive Legal Effect of Ms. Nash's Affirmed Final Judgment A corollary of the rule that where, as here, there has been "[a] decision 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," and that decision has been affirmed on appeal, and no further appeal was taken, courts have no jurisdiction to later "destroy or diminish" it, is the equally well settled rule that a decision rendered later in another case (here on the Ruiz appeal), cannot be applied to "destroy or diminish" the conclusive legal effect of the prior decision. See, e.g., People v. Pepper, 53 N.Y.2d 213, 221, 423 N.E. 368, 440 N.Y.S.2d 889, 892 (1981), setting forth the rule that even where a decision of this Court (or the supreme Court of the United States) has "retroactive application," any such "retroactivity [is] limited to those [cases] still 69 on direct review at the time the change in the law occurred," i.e., "cases young enough to still be on direct appeal ... " Further, "retroactive application [of any change in the law is] denied where that process [the appellate process] has been exhausted," as it was in Ms. Nash's case when this Court rendered its decision reversing the Port Authority's liability "as to Ruiz." See, also., Gager v. White, supra. The issue before this Court in Gager v. White was what pending cases should be dismissed in light of the decision of the United States Supreme Court in Rush v. Savchuk,21 that "vitiate [d] the predicate for quasi in rem jurisdiction that this Court had earlier set forth" in Seider v. Roth22 • In Gager v. White this Court held that for a pending case based on quasi in rem jurisdiction to be dismissed pursuant to Rush v. Savchuk two requirements had to be met. First, the case had to be pending, i.e., "in the pipeline," at the time Rush v. Savchuk was decided. Then, the defense of lack of jurisdiction had to have been be raised in, and also still be in the case, 21 444 u.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). 2217 N.Y.2d 111, 216 N.E.2d 312, 269 N.Y.S.2d 99, (1966). 70 i.e., still be "in the pipeline" (or as this Court put the phrase more completely in People v. Favor, 82 N.Y.2d 254, 262, 624 N.E.2d 631, 604 N.Y.S.2d 495, 498 (1993)), still "in the direct appeal pipeline," when the new decision was rendered), and not earlier been removed, by waiver or otherwise, at the time Rush v. Savchuk was decided. (Gager v. White, supra, 53 N.Y.2d at 448, 475, 53 N.Y.S.2d at 465- 466.) Here, of course, the appellate process in Ms. Nash's case ended, and her case taken out of "the direct appeal pipeline" in its entirety, before this Court rendered its decision in Ruiz. Further, as the Appellate Division held in affirming Ms. Nash's Final Judgment on June 2, 2011, the Port Authority had waived and abandoned, on its appeal from Ms. Nash's Final Judgment to that Court, any claim of error in Ms. Nash's Final Judgment that declared that it was liable to her on her claim. It is beyond argument that when the Port Authority deliberately refused to seek leave to appeal the Appellate Divisions affirmance of Ms. Nash's Final Judgment to this Court it deliberately and knowingly abandoned, forever, its pursuit of an order reversing the affirmance of the liability verdict rendered as to her in her case, indeed, 71 abandoned forever, and in all courts under any guise, any claim that it was not liable to her Whether the decision of this Court on the Ruiz appeal on September 22, 2011, established a new rule of law, changed the law by overturning a previously existing rule of law, or, as was the actual situation in Ruiz, "applie[d] previously established principles in a new factual setting ... ," the same rule applies. (People v. Favor, supra, 82 N.Y.2d at 263, 604 N.Y.S.2d at 499.) The new decision, if it has retroactive effect at all, can only be applied to cases that were in the active appeal process when the new decision was rendered by this Court, in future appellate proceedings in those cases, proceedings that were not possible in Ms, Nash's case when this Court rendered its decision on the Ruiz appeal. Consequently, this Court's decision in Ruiz could not be applied to vacate Ms. Nash's Final Judgment. The Appellate Decision's use of this Court's decision in Ruiz to vacate Ms. Nash's decision was impermissible. D. The Appellate Division's Decision in McMahon v. City of New York Was Consistent with These Well Settled Rules; the Decisions of the lAS Court and the Majority in the Appellate Division below Violated All of Them In its Decision vacating Ms. Nash's affirmed Final 72 Judgment (A 16), the lAS Court violated all these rules, but attempted to mask that reality by casting its decision as a mere ministerial implementation of this Court's decision in Ruiz, that it said had "eviscerated" the Port Authority's liability to Ms. Nash. It did so despite the facts (1) that this Court held it had no jurisdiction to review Ms. Nash's affirmed Final Judgment when rendered its decision on the Ruiz appeal, and thus could not possibly have "eviscerated" it in the Ruiz decision, and then (2) expressly excluded Ms. Nash's case from "the scope" of the Ruiz decision. As noted earlier, the lAS Court did not say it was exercising any discretion at all, under CPLR 5051 or otherwise, or any inherent power, or cite any other authority than this Court's decision on the Ruiz appeal when it vacated Ms. Nash's affirmed Final Judgment and dismissed her Complaint. In its Decision of January 8, 2013 (A456-468), the majority in the Appellate Division, that apparently recognized that the decision of the lAS Court was contrary to this Court's controlling decisions in several areas of the applicable law, and untenable, essentially reversed it. 73 Nevertheless, it went on to affirm the Order that vacated Ms. Nash's affirmed Final Judgment under the guise of affirming a proper exercise of discretion by the lAS Court: discretion the lAS Court did not have and did not say it was exercising, on a rationale that actually was inconsistent with the rationale set forth by the lAS Court for its decision. Like the lAS Court the majority in the Appellate Division reinstated the defense of no liability to Ms. Nash on her claim that the Port Authority had previously waived and abandoned, and could not resurrect. Its decision violated all of the settled, applicable and controlling rules of law described above, and was fatally erroneous in its own right. The majority in the Appellate Division, in an apparent exercise of discretion that, just as it lacked subject matter jurisdiction over Ms. Nash's Final Judgment, it also did not have, decided that the decision of the lAS Court was a proper exercise of discretion. It reached that conclusion because, it asserted, the "the underlying reasoning expressed" in its decision in McMahon v. City of New York, 105 AD2d 101 (1st Dept 1984] "applies here as well." (A438.) 74 The actual "underlying reasoning" of the Appellate Division in McMahon was that: "[T]he Court of Appeals ruling [in O'Connor, the related case] would be binding in all the cases arising out of the explosion in which the question was still open." (483 N.Y.S.2d at 229.) In Ms. Nash's case the question of the Port Authority's liability to her "arising out of the explosion" was no longer open when this Court rendered its decision in Ruiz because the Port Authority had deliberately abandoned its appeal from Ms. Nash's affirmed Final Judgment and taken Ms. Nash's case in its entirety "out of the pipeline." In the McMahon decision the Appellate Division further reasoned: "[In] the present case [McMahon] ... at the time the supervening judgment of the highest court was rendered [in O'Connor, et ale v. City of New York, 58 N.Y.2d 184, 447 N.E.2d 33, 460 N.Y.S.2d 485 (1983)) ,a case that arose out of the same incident], [1] a direct appeal was still pending from the final judgment in the other appeal [the McMahon case], [2] the issues [of the City's liability to McMahon] were still subject to review on that appeal, and [3] the [Appellate Division's earlier] dismissal of the [City's] appeal was pursuant to an order denying extension or reargument expressly stated to be 'without prejudice' to an appropriate post-judgment application for relief in the Supreme Court precisely in the light of the supervening decision of the highest court." (105 A.D.2d at 106, 483 75 N.Y.S.2d at 232.) Not a single element of the Appellate Division's "underlying reasoning U in McMahon applies to Ms. Nash's situation. Further, because the issue of the Port Authority's liability to Ms. Nash was not "open" when this Court rendered its decision in Ruiz, McMahon as the dissent notes, "in fact supports Nash. u (A465-466. ) The majority in the decision appealed from noted that "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. u However, it characterized that difference as a mere "difference in procedural posture,u rather than the fundamental substantive difference that it is, to wit, the difference between a non final decision that is not res judicata between the parties to it, and where the issue was still "open,U and subject to modification, even reversal, on its still pending appeal, and an affirmed Final Judgment like that in Ms. Nash's case, that was a "final determination of the questions necessary presented [that] was binding on the parties to theU action, is res judicata "as between the parties [and] a conclusive 76 determination of questions of both law and fact there litigated," "the legal effect of" which could not be "destroyed] or diminish [ed]" (Sears, supra, 274 N.Y. at 400, 401, 402), as to which further appellate proceedings had been abandoned and were no longer possible. In short, where the issue was "closed". While the majority referred to the footnote in this Court's decision in Ruiz, where this Court declared that Ms. Nash's case was "beyond the scope" of the Ruiz appeal, it mischaracterized it. In holding that Ms. Nash's action was not "within the scope" of the Ruiz decision, this Court did not say that was "a simple acknowledgment that while Nash was given permission to argue the appeal before the Court, her action was not being addressed by the Court," as the majority in the Appellate Division postulates. (A459.) What this Court actually said in that footnote was that Ms. Nash's case was "not within the scope" of its decision in Ruiz because "A judgment on the Nash action was recently affirmed by the Appellate Division." The majority in the Appellate Division ignored what this Court actually said there. It also ignored, as did the lAS before it, the other Decision 77 rendered by this Court that day, namely the Decision in which this Court mirrored what it said in footnote 7, and specifically held that did not have jurisdiction, as a matter of law or discretion, even after deciding the Ruiz appeal favorably to the Port Authority and vacating the April 29, 2008, Interim Order of the Appellate "as to Ruiz," to grant the Port Authority any relief from or as to Ms. Nash's affirmed Final Judgment. The majority's purported exercise of discretion in affirming the May 15, 2012, Decision of the lAS Court not only impermissibly reinstated a defense the Port Authority had waived and could not resurrect, but it rests on a presumed future act, namely that the issue of the Port Authority's liability to Ms. Nash was still subject to review on appeal on the merits, and that on that review some court would find the Ruiz decision applicable on the facts of her claim and apply it to reverse her Final Judgment, that could never happen. Reinstating a defense that had been irrevocably waived and abandoned, and resting as it does on a presumed future act cannot possibly occur, the decision below was an 78 arbitrary and capricious, contrary to law and logic, and would have been a clear breach of any discretion it might have had, and it did not have any, as a matter of law. See, e.g., McKenna v. County of Nassau, 61 N.Y.2d 739, 741-742, 460 N.E.2d 1348, 472 N.Y.S.2d 913, 914 (1984): "Special Term abused its discretion in reopening its judgment to correct a perceived error of law that could have been raised on the prior appeals to the Appellate Division and to this court." McKenna applies a fortiori here, where the Port Authority could have pursued its claim of error in Ms. Nash's Final Judgment, that declared it was liable to her on her claim, had it sought and secured leave to appeal the Appellate Division's affirmance of her Final Judgment rather than determining, as a matter of strategy, to not seek further review of that Judgment, voluntarily abandoning any such claim, and putting an end to her case. Accordingly, the decision appealed from must be reversed. 79 POINT II THIS COURT'S SEPTEMBER 22, 2011 DECISION IN RUIZ WAS NOT A DECISION IN MS. NASH'S CASE, WHERE THE PORT AUTHORITY VOLUNTARILY ABANDONED ITS PURSUIT OF AN ORDER REVERSING THE APPELLATE DIVISION'S APRIL 29, 2008, INTERIM ORDER, THAT SEPARATELY AFFIRMED THE PORT AUTHORITY'S LIABILITY TO HER ON HER CLAIM, DID NOT, AND COULD NOT HAVE BEEN, INTENDED TO APPLY TO MS. NASH'S PREVIOUSLY AFFIRMED FINAL JUDGMENT, AND COULD NOT SERVE AS A PREDICATE FOR ANY MOTION FOR RELIEF FROM MS. NASH'S AFFIRMED FINAL JUDGMENT UNDER CPLR 5015 (A) (5) A. The Port Authority Deliberately Abandoned its Pursuit of Any its Defense That it Was Not Liable to Ms. Nash on Her Claim, Including Abandoning its Pursuit of an Order Reversing the Appellate Division's April 29, 2008, Decision That Separately Affirmed the Port Authority's Liability to Ms. Nash on Her Claim, and this Court's Later Rendered Decision on the Ruiz Appeal Did Not, and Could Not Have, Resurrected That Defense, and Could Not Serve as a Predicate for a Motion for Relief from Ms. Nash's Affirmed Final Judgment under CPLR 5015(a) (5) Ms. Nash believes it would be useful to reiterate here that the Port Authority's appeal of Ms. Nash's Final Judgment to the Appellate Division on January 15 to 2010, was different from, separate from and exclusive of the appeal that it took to this Court from Mr. Ruiz's final Judgment six days later. As the lead attorney for the Port Authority on both 80 appeals, that were "mutually exclusive"23, told this Court in his letter of October 5, 2010: "[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 ... Instead, the Port Authority appeals from a final judgment in favor of Plaintiff-Respondent Antonio Ruiz, which brings up for review the intermediate Appellate Division order fixing liability against the Port Authority" as to Mr. Ruiz. (A177.) Just as the Port Authority's appeal to this Court from Mr. Ruiz's final Judgment brought "up for review," and sought a reversal in this Court, of the intermediate Appellate Division order of April 29, 2008 "as to Ruiz," the Port Authority's earlier, separate appeal of Ms. Nash's affirmed Final Judgment to the Appellate Division, as the dissent below noted, brought "up for review," and sought a reversal of, the intermediate Appellate Division's Order of April 29, 2008, by that Court, as to Ms. Nash. It would have brought it up for review in this Court on the facts of her claim had the Port Authority not abandoned ifs appeal deliberately precluded any such review. 23 Parker v. Rogerson, supra, 35 N. Y. 2d at 753. 81 When the Port Authority waived and abandoned its appeal of Ms. Nash's affirmed Final Judgment it also waived and abandoned its pursuit of an order that would reverse the April 29, 2008, intermediate Order of Appellate Division that separately affirmed its liability to Ms. Nash on her claim against it. There is no question that the Port Authority, having voluntarily abandoned its pursuit of such an order, could never resurrect or reinstate it, in any court on any pretext. This Court's reversal of the April 29, 2008, intermediate Order of Appellate Division "as to Ruiz" on the Ruiz appeal, that even the Port Authority conceded excluded Ms. Nash's case, thus was not, and could not have been a reversal of that Intermediate Order in Ms. Nash's case, and could not serve as a predicate for a motion to vacate, i.e., "unravel" Ms. Nash's previously affirmed Final Judgment, pursuant to CPLR 5015(a) (5)or otherwise. See, Deeves v. Fabric Fire Hose Company, supra, 14 N.Y.2d 633, 249 N.Y.S. 2d 423: "the original decision determining the rights and position of the parties should not be reversed [or vacated or stayed] simply because an appellate court, in the interim, in another case, has 82 overruled its own or another statement of existing law." Accord, In re Huie, supra, 20 N.Y.2d at 572, 285 N.Y.S.2d at 610: An original decision "determining the rights and positions of the parties should [not] be reversed on a motion for reargument made after the expiration of the time to appeal on the sole ground that, in the interim, an appellate court [in another case] has overruled its own or another statement of existing law." B. Neither the lAS Court Nor the Appellate Division Had Jurisdiction, and Thus Lacked Any Discretion to Disturb or in Any Way "Diminish" or "Destroy" the Conclusive Effect of Ms. Nash's Affirmed Final Judgment, and Even If They Had Any Such Discretion They Would Have Abused it as a Matter of Law The Dissent below concludes with the statement that: "Since the time to appeal from the [Appellate Division's] order of June 2, 2011 [that affirmed Ms. Nash's Final Judgment] finally determining the rights of the parties in Nash had already expired prior to the time the Court of Appeals decided Ruiz, Ms. Nash's judgment could no longer be disturbed. I would accordingly hold that the motion court improvidently exercised its discretion in granting the motion to vacate the judgment." (A467-468. ) It could not be clearer that the conclusion reached by the dissent was correct. The Port Authority's refusal to seek leave to appeal the Appellate Division's June 2, 2011 83 affirmance of Ns. Nash's Final Judgment to this Court was a voluntary and deliberate abandonment of its appeal from Ms. Nash's affirmed Final Judgment. It put an end to her action, and deprived this Court and all other courts of subject matter jurisdiction over it. As a result, neither the lAS court nor the Appellate Division had subject matter jurisdiction over Ms. Nash's affirmed Final Judgment (except to enforce it). And neither had jurisdiction or discretion to vacate it, or "destroy or diminish" it in any way. Sears, supra, Gager v. White, supra, Firestone Tire & Rubber Company v. Risjord, supra, 449 u.S. at 379: "A court lacks discretion to consider the merits of a case over which it is without jurisdiction ... " Vacating Ms. Nash's affirmed Final Judgment under CPLR 5015(a) (5) would have been a clear abuse of discretion as a matter of law even if there were jurisdiction in the lAS Court, that pointedly declined to exercise any discretion, or the Appellate Division. McKenna v. County of Nassau, supra. See, also, Glicksman v. Board of Education/Central School Board of Comsewogue Union Free School District, 278 A.D.2d 364, 717 N.Y.S.2d 373, 374 (2d Dep't 2000) (2000 N.Y. 84 Slip Op. 11150). There, ~Pursuant to a judgment entered May 12, 1999, the complaint ... was dismissed. The plaintiffs did not appeal from the judgment. In or about December, 1999, they moved for leave to renew based on a change in decisional law. The trial Court granted the motion, and the Appellate Division, citing, among other authorities, this Court's decisions in Huie, and Deeves, supra, reversed holding: ~Where ... judgment had been entered and no appeal was [taken or] pending ... a motion for leave to reargue based on a change in the law should not be granted. [Citations omitted.] As noted by the Court of Appeals [in Huie] 'there must be an end to lawsuits and the time to take an appeal cannot be forever extended.' Absent the sort of circumstances mentioned in CPLR 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate. None of the circumstances set forth in CPLR 5015, nor circumstances which would warrant the exercise of the court's inherent power to provide relief from a judgment are present here.' [Citations omitted.] Consequently, because the plaintiffs' motion was made after judgment was entered and the time to appeal had expired, it should have been denied as untimely." C. The Inherent Power of the Court As to ~the inherent power of the court," the alternative ground on which the Port Authority sought to have the lAS 85 Court vacate Ms. Nash's final Judgment after it had been affirmed by the Appellate Division and it voluntarily abandoned its appeal of it, neither the lAS Court nor the majority in the Appellate Division discussed it, and it was not a ground on which either court vacated Ms. Nash's Judgment. That said, since neither the lAS Court or the Appellate Division had subject matter jurisdiction over the merits of Ms. Nash's affirmed Final Judgment when the Port Authority made its motion to vacate it, neither had "inherent power" to entertain it. Firestone Tire & Rubber Company v. Risjord, supra, People v. Thomas, supra, Glicksman, supra. Further, as this Court has uniformly and consistently held, in Slater, Sears, Deeves, Huie, McKenna, Lacks, and the other authorities cited earlier, supra, that in these circumstance "the interests of justice" require that such relief be denied. CONCLUSION Ms. Nash is a human being, now more than 69 years old, In much diminished circumstances, and ailing physically and emotionally from the injuries she suffered when the bomb 86 exploded 20 years ago. She has a limited life span. The injuries inflicted on her by the two year delay in the satisfaction of her affirmed Final Judgment caused by Port Authority's motion to vacate, i.e., "unravel," her affirmed Final Judgment on the basis of the Ruiz decision, despite its earlier admission to this Court that the applicable law precluded that result - a motion that she believe was "frivolous"24 and designed to harass her, are irreparable. The interest that will be paid to her for that two year delay compensates only for deprivation of dollars. It does not and cannot compensate Ms. Nash for the two years of deprivation that the Port Authority's motion to vacate caused her to suffer, particularly at this stage of her life. For the reasons stated herein it is respectfully requested: 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, M Uniform Trial Court Rules, Part 130-1, §130-1.1. (c). 87 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. Dated: May 14, 2013 LOUIS A. MANGONE, ESQ. Attorney for Plaintiff- Respondent Linda P. Nash 505 Greenwich Street lOB C/O Mangone New York, New York 10013 (646) 704-0029 (954) 661-7082) 826abr28-2/13 88