To Be Argued By:
ALANI GOLANSKI
Time Requested: 30 Minutes
APL-2013-00262
New York County Clerk’s Index No. 190377/10
Court of Appeals
STATE OF NEW YORK
In Re: NEW YORK CITY ASBESTOS LITIGATION
MARY ANDRUCKI, as Administratrix for the Estate of
GEORGE P. ANDRUCKI, and MARY ANDRUCKI, Individually,
Plaintiff-Appellant,
—against—
ALUMINUM COMPANY OF AMERICA, BELL & GOSSETT COMPANY, BURNHAM,
LLC, Individually and as Successor to BURNHAM CORPORATION, CARRIER
CORPORATION, Individually and as Successor in interest to BRYANT HEATING &
COOLING SYSTEMS, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
EMPIRE ACE INSULATION MFG. CORP., INGERSOLL RAND COMPANY, ITT
INDUSTRIES, INC., Individually and as Successor to BELL & GOSSETT COMPANY,
and as Successor to KENNEDY VALVE MANUFACTURING CO., INC., and as
Successor to GRINELL VALVE CO., INC., KENTILE FLOORS, INC., KEYSPAN
GENERATION, LLC, f/k/a LONG ISLAND POWER AUTHORITY, MARIO & DIBONO
PLASTERING CO., INC. and OWENS-ILLINOIS, INC.,
Defendants,
(Caption Continued on Inside Cover)
REPLY BRIEF FOR PLAINTIFF-APPELLANT
d
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, New York 10003
Telephone: (212) 558-5500
Facsimile: (212) 344-5461
Attorneys for Plaintiff-Appellant
Of Counsel:
ALANI GOLANSKI
Date Completed: April 1, 2014
PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Defendant-Respondent,
—and—
TISHMAN LIQUIDATING CORP., TISHMAN REALTY & CONSTRUCTION
CO., INC. and TURNER CONSTRUCTION COMPANY,
Defendants.
TABLE OF CONTENTS
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Plaintiff Rightfully Prosecuted the Personal Injury/Survival
Claims Based on the Earlier Notice of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Plaintiff Was Able to Bring Her Wrongful Death Claims
on the Basis of the Earlier Notice of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. The Text of the Suability Statute’s Notice of Claim Provision
Permits Substantial Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) The Fourth Notice of Claim Component. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) The Second Notice of Claim Component. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. The Legislature Required the New York Suability Statute and the
New Jersey Companion Statute to Have “An Identical Effect”. . . . . . . . . . . 15
3. This Court Should Consider the Legislative Intent, the Proprietary
Context of This Action, And Other Policy Principles. . . . . . . . . . . . . . . . . . . 24
C. The Trial Court Properly Entered a Default Judgment Against
Defendant Port Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-i-
TABLE OF AUTHORITIES
Cases: Page(s)
Aegis Ins. Servs. v. Port Auth., 435 Fed. Appx. 18 (2d Cir. 2011). . . . . . . . . . . . . 6, 13
Allstate New Jersey Ins. Co. v. Lajara, 77 A.3d 491
(N.J. App. Div. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Aristide v. New York, 493 N.Y.S.2d 247
(Sup. Ct., Kings County, 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18
Asiana Airlines, Inc. v. Port Auth. of New York & New Jersey,
¹ 96 CV 1470, 1996 WL 480797 (E.D.N.Y. Aug. 8, 1996). . . . . . . . . . . . . . . . . . . . 22
Azria v. Salerno, 68 N.Y.2d 887 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915 (S.D. 1988). . . . . . . . . . 27-28
Brown v. City of New York, 95 N.Y.2d 389 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cimo v. State, 306 N.Y. 143 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Continental Terminals, Inc. v. Waterfront Comm’n of New York Harbor,
486 F. Supp. 1110 (S.D.N.Y. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Corcoran v. New York Power Auth., ¹ 95 Civ. 5357 (DLC),
1997 WL 603739 (S.D.N.Y. Sept. 29, 1997), aff’d, 201 F.3d 430
(2d Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5
Courtesy Sandwich Shop, Inc. v. Port of New York Auth.,
12 N.Y.2d 379 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Crusader Servicing Corp. v. Port Auth. of New York & New Jersey,
902 A.2d 272 (N.J. App. Div. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
De Brino v. Benaquista & Banaquista Realty, Inc., 154 A.D.2d 812
-ii-
(3d Dep’t 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Heslin v. County of Greene, 14 N.Y.3d 67 (2010). . . . . . . . . . . . . . . . . . . . . . 10-11, 14
Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994). . . . . . . 16-17, 20, 25
Holmes v. City of New York, 269 A.D. 95 (2d Dep’t 1945). . . . . . . . . . . . . . . . passim
Holmes v. City of New York, 295 N.Y. 615 (1945). . . . . . . . . . . . . . . . . . . . . . . passim
In re World Trade Center Bombing Litig.: Steering Comm. v.
Port Auth. of New York & New Jersey, 17 N.Y.3d 428 (2011). . . . . . . . . . . . . . . 27-28
Keller v. Lonsdale, 339 P.2d 112 (Or. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Koenig v. Patrick Const. Corp., 298 N.Y. 313 (1948). . . . . . . . . . . . . . . . . . . . . . . . . 23
Koppell River Realty, Inc. v. Rodriguez, 85 A.D.3d 520
(1 Dep’t 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30st
Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577
(1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Mazzio v. New York, 99 N.Y.S.2d 95 (Sup. Ct., Kings County, 1950). . . . . . . . . . . 18
McClintock v. Bi-State Dev. Agency, 591 N.E.2d 967 (Ill. App. 1992). . . . . . . . . 28-29
Miller v. City of New York, 187 Misc. 926, 63 N.Y.S.2d 44
(Spec. Term, Kings County, 1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-28
Mingone v. State, 100 A.D.2d 897 (2d Dep’t 1984). . . . . . . . . . . . . . . . . . . . . . . . . . 17
Palmquist v. Johnson, 41 So.2d 313 (Fla. 1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Pardo v. Port Auth. of New York & New Jersey, ¹ 08-CV-1311,
2009 U.S. Dist. LEXIS 18192 (D.N.J. Mar. 9, 2009). . . . . . . . . . . . . . . . . . . . . . . . . 16
Patrolmen’s Benevolent Ass’n of City of N.Y. v City of New York,
41 N.Y.2d 205 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
-iii-
People v. Brown, 40 N.Y.2d 183 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Privat Air, S.A. v. Port Auth. of New York & New Jersey,
¹ 05-CV-2213 (DLI) (RLM), 2007 WL 2089285
(E.D.N.Y. July 19, 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23
Ramos v. New York City Transit Auth., 60 A.D.3d 517
(1 Dep’t 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17st
Robbins v. Coca-Cola-Company, ¹ 13-CV-132 – IEG (NLS),
2013 U.S. Dist. LEXIS 72725 (S.D. Cal. May 22, 2013). . . . . . . . . . . . . . . . . . . . . . . 14
Scheel v. City of Syracuse, 97 A.D.2d 978 (4 Dep’t 1983). . . . . . . . . . . . . . . . . . . . 17th
Sebastian v State of New York, 93 N.Y.2d 790 (1999). . . . . . . . . . . . . . . . . . . . . . . . 27
State v. Barquet, 262 So.2d 431 (Fla. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Stolarski v. Family Serv. of Westchester, Inc., 110 A.D.3d 980,
973 N.Y.S.2d 725 (2d Dep’t 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sweeney v. Presbyterian/Columbia Presbyterian Med. Ctr., 763 F. Supp. 50
(S.D.N.Y. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517 (2008). . . . . . . . . . . . . . . . . . . . . . 7
White v. North Bergen Township, 391 A.2d 911 (N.J. 1978). . . . . . . . . . . . . . . . . . . 7
Whittaker v. Village of Franklinville, 265 N.Y. 11 (1934). . . . . . . . . . . . . . . . . . . . . . 28
Wilf v. Halpern, 234 A.D.2d 154 (1 Dep’t 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30st
Zamel v. Port Auth. of N.Y., 264 A.2d 201 (N.J. 1970). . . . . . . . . . . . . 9, 16, 22-23, 28
-iv-
Rules, Statutes and Constitutional Provisions:
CPL 690.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CPLR 208. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CPLR 3125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CPLR 3215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30
E.P.T.L. § 5-4.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
E.P.T.L. § 11-3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
E.P.T.L. § 11-3.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11-12
General Municipal Law § 50-e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-20, 25
McK. Unconsol. Laws § 7106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
McK. Unconsol. Laws § 7107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 14
McK. Unconsol. Laws § 7108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8-9, 12, 22
McK. Unconsol. Laws § 7112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14-15, 19, 22
N.Y. Unconsol. Laws § 6610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
N.Y. Unconsol. Laws, §§ 9801 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
New York City, N.Y., Code § 7-201 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
N.J. Stat. § 32:1-163 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
N.J. Stat. § 32:1-176 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22
N.J. Stat. Ann. §§ 32:23-1 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
U.S. Const. Art 1, Sec. 10, Cl. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Other Authorities:
Frank P. Grad, Federal-State Compact: A New Experiment in Cooperative
Federalism, 63 Colum. L. Rev. 825 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Memorandum by Assemblyman D. Mallory Stephens, reported in
New York State: 1950 Legislative Annual. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24
-vi-
INTRODUCTION
The principal issues in this appeal may be succinctly restated: (1) whether the
plaintiff’s notice of claim detailing Mr. Andrucki’s personal injuries arising from Port
Authority’s misconduct, served by the plaintiffs while Mr. Andrucki was still alive,
remained valid upon his death with respect to plaintiff’s survival claims? (2) whether
considerations pertinent to the creation of a bi-state compact, and defendant’s
misconduct arising in its proprietary role, in conjunction with this Court’s still-
influential Holmes ruling, support the trial court’s conclusion that plaintiff’s notice of
claim similarly enabled her wrongful death action? and (3) whether the trial court,
having subject matter jurisdiction, appropriately entered a default judgment against
the Port Authority?
The answer to all three of the above questions is “yes.” With regard to the
first issue, plaintiffs served a notice of claim upon the Port Authority for Mr. and
Mrs. Andrucki’s injuries and losses on October 4, 2010 [A. 86-88]. Plaintiff’s
complaint filed January 18, 2011 [A. 89], sought recovery for precisely the personal
injuries, based on the precisely the misconduct and tortious occurrences, noticed in
the October 2010 notice of claim. This complaint was thereby filed more than sixty
days following service of the notice of claim, and within the year limitations period
prescribed by the Port Authority suability statute at Section 7107 of the
Unconsolidated Laws.
It is true that plaintiffs initially and incorrectly included the Port Authority as a
defendant, along with sixteen other entities [A. 80], on their original complaint filed
within the sixty-day period. This was a mistake, and the inadvertent inclusion of Port
Authority on that complaint was a nullity. However, defendant’s dwelling on this
mistake in its brief [e.g., D/B, at 3, 13, 41] is a distraction from the actual issues
before the Court, as would be dwelling on Port Authority’s deleterious conduct before
(intentionally delaying in asserting any jurisdictional defense [see A. 24-25, 36]), during
(intentionally failing to appear although the jurisdictional issue had not been decided
in its favor [see A. 21, 31, 35]) and after the trial (blaming the jurists, other parties, and
everyone but itself for its lapses and misconduct [A. 29, 36, 40-44]) in this case.
With regard to the second issue, whether plaintiff’s notice of claim also
satisfies the suability statute’s requirements as to plaintiff’s wrongful death claims, this
Court has once, many years ago, ruled on virtually the same issue. In Holmes v. City of
New York, 295 N.Y. 615 (1945), this Court addressed the question of whether a
personal injury notice of claim served during the decedent’s life covered the estate’s
later wrongful death claim. This Court upheld the reasoning of both Special Term
and the Appellate Division, answering the question in the affirmative. 295 N.Y. 615,
617. It is particularly the Appellate Division’s analysis in Holmes, 269 A.D. 95 (2d
Dep’t 1945), affirmed and adopted by this Court, that even today, many decades later,
remains valid and compelling.
2
Although plaintiff’s main brief extensively discusses Holmes, the Port
Authority’s respondent’s brief pays almost no attention to that case. When the Port
Authority does briefly mention Holmes, as an afterthought, it notes that “[t]he holding
in Holmes is basically codified in E.P.T.L. § 11-3.3(b)(2),” but then totally falsely
claims that Section 11-3.3 is “a statute which Plaintiff has conceded is inapplicable
due to defects in the initial Complaint” [D/B, at 41] (yet another distracting reference
to plaintiff’s initial complaint, a nullity as to Port Authority and hence irrelevant to
the issues now on appeal).
Quite the contrary, the lucid reasoning in the 1945 Holmes decisions withstands
the test of time and applies in the present case with regard to plaintiff’s wrongful
death claims. Numerous additional considerations, discussed below and particularly
compelling in the context of the interpretation of legislation effectuating a bi-state
compact, and the Port Authority’s proprietary role in overseeing construction work
on its premises, require the continued application of the Holmes approach with regard
to the Port Authority suability statute.
With regard to the third issue, there is little doubt that, once the trial court is
deemed to have had subject matter jurisdiction in this action, entry of the default
judgment was entirely warranted. Notwithstanding defendant’s cryptic efforts at
confusing this issue [D/B, at 44-49], it is a simple point of law that, pursuant to
Section 3215 of the CPLR, Port Authority’s failures to appear or proceed, and its
3
repeated and admittedly intentional disregard of court procedures [A. 27, 31],
warranted the trial court’s default judgment.
A. PLAINTIFF RIGHTFULLY PROSECUTED THE PERSONAL
INJURY/SURVIVAL CLAIMS BASED ON THE EARLIER NOTICE
OF CLAIM
The first issue is whether plaintiff’s notice of claim, served October 4, 2010 [A.
87], fulfilled the suability statute’s requirements with respect to plaintiff’s common
law personal injury and survival claims, as alleged in the January 17, 2011 complaint
[A. 89]. There can be no reasonable doubt that the notice of claim sufficiently
noticed, and preserved, the estate’s claims against the Port Authority for the harm
sustained by plaintiff before he died.
Section 11-3.2 of the New York Estates, Powers and Trusts Law (“E.P.T.L.”)
prescribes that “[n]o cause of action for injury to person or property is lost because
of the death of the person in whose favor the cause of action existed. For any injury
an action may be brought or continued by the personal representative of the decedent. . . .”
E.P.T.L. § 11-3.2(b) (emphasis added). Therefore, under this statute, upon her
appointment as administratrix, Mrs. Andrucki was permitted to engage in the
seamless continued prosecution of her deceased husband’s claims, and hence to file
the complaint against Port Authority on the basis of the earlier-filed notice of claim.
See generally Corcoran v. New York Power Auth., ¹ 95 Civ. 5357 (DLC), 1997 WL
4
603739, at *4 (S.D.N.Y. Sept. 29, 1997) (“a survival claim, which is essentially a
continuation of the decedent’s personal injury action, is dependent on the viability of
the claims at the time of the person’s death”), aff’d, 201 F.3d 430 (2d Cir. 1999) ;1
Sweeney v. Presbyterian/Columbia Presbyterian Med. Ctr., 763 F. Supp. 50, 53 (S.D.N.Y.
1991) (“any negligence cause of action which Sweeney might then have asserted was
available to his executor when this action was filed fourteen months after his death”).
Moreover, the Port Authority suability statute itself addresses the liberalized
limitations period permitted within the court’s discretion “where a person entitled to
make a claim dies and by reason of his death no notice of claim is filed or suit, action
or proceeding commenced within the time specified in section [7107]. . . .” MCK.
UNCONSOL. LAWS § 7108. This language contemplates that a notice of claim may
already have been filed or served prior to the claimant’s death, and in the event the
claimant was able to do so the statute does not require the service of a new notice of
claim. Where the notice of claim has been served prior to the claimant’s death, the
estate’s representative may continue to prosecute the case without filing a new notice
of claim. Significantly, Section 7107 requires solely that “a notice of claim” be served
at least sixty days before commencing suit, and Section 7108 allows that, where “the
notice of claim” has not been served within the one-year period because of plaintiff’s
Corcoran grants defendant’s motion for summary judgment on various grounds,1
including late filing of the notice of claim.
5
death, the court may “grant leave to serve the notice of claim” subsequently.
The force of this point is highlighted by defendant’s own admission in its brief
that “the notice provision exists to provide the Port Authority with sufficient
information to meaningfully investigate the claim” [D/B, at 4]. Because the survival
claim is the very same as the decedent’s original claim during his lifetime, it “may be
brought or continued by the personal representative of the decedent.” E.P.T.L. § 11-
3.2(b). There is absolutely nothing about the informational content of the originally
sufficient notice that could render it automatically insufficient following the
claimant’s death. Section 11-3.2 is referred to as the “survival statute” because a
cause of action based on personal injuries “survives the death of the decedent . . . .”
Stolarski v. Family Serv. of Westchester, Inc., 110 A.D.3d 980, 973 N.Y.S.2d 725, 727 (2d
Dep’t 2013).
Accordingly, at the very least, the judgment appealed from should be reinstated
to the extent of the personal injury/survival component, and the First Department’s
decision concomitantly reversed at least to the same extent. See generally Aegis Ins.
Servs. v. Port Auth., 435 Fed. Appx. 18, 24-26 (2d Cir. 2011).
B. PLAINTIFF WAS ABLE TO BRING HER WRONGFUL DEATH
CLAIMS ON THE BASIS OF THE EARLIER NOTICE OF CLAIM
The next question is whether the wrongful death component of the judgment
6
entered below should also be reinstated. Upon further analysis, the answer must be
“yes.” There appears to be no dispute, and defendant appears to concede, that were
the suability statute construed to permit “substantial compliance” with its notice of
claim provision, plaintiff’s wrongful death claims would also be cognizable based on
the October 4, 2010 notice of claim. Plaintiff’s position is that the Port Authority
suability statute should be construed to incorporate a substantial compliance
standard.
At the outset, it should be noted that whether the statute embodies a
substantial compliance standard is a separate issue from whether it must be strictly
construed. In both New York and New Jersey, statutes in derogation of the common
law are strictly construed. Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521 (2008);
Allstate New Jersey Ins. Co. v. Lajara, 77 A.3d 491, 500-01 (N.J. App. Div. 2013); White v.
North Bergen Township, 391 A.2d 911, 922 (N.J. 1978). Whether any such statute must
be strictly or substantially complied with is another, interpretative matter; strict
construction may engender a substantial compliance standard either because the text,
strictly construed, prescribes the substantial compliance standard, or because there
are other compelling reasons for applying this standard.
Typically, whether a statute may be substantially complied with is indicated by
the statute’s language. E.g., Azria v. Salerno, 68 N.Y.2d 887, 889 (1986). Occasionally,
however, statutes are deemed to incorporate a substantial compliance standard even
7
though there is no textual indication that this is so. E.g., People v. Brown, 40 N.Y.2d
183, 185-86 (1976) (“On this appeal the defendant’s first argument is that the warrant
application is invalid because it does not comply with CPL 690.35(1) which provides
that ‘An application for a search warrant must be in writing and must be made,
subscribed and sworn to by a public servant.’ In our view there was substantial, if not
literal, compliance with the statutory requirement. Although the application was
orally presented, it was recorded and thus there is a writing, which as indicated was
under oath”).
There are essentially three reasons why the Port Authority suability statute
should be construed to permit substantial compliance. First, the statutory language,
at the fourth prong of Section 7108’s list of notice of claim components, permits the
claimant to set forth, in her notice of claim, “(4) the items of damage or injuries
claimed to have been sustained so far as then practicable.” MCK. UNCONSOL. LAWS
§ 7108.2
Second, New York’s Legislature codified our State’s commitment that the New
York statute – part of a bi-state compact – must be construed in a manner “identical”
Arguably, as noted in plaintiff’s main brief [P/B, at 6], to state damages or injuries2
“so far as then practicable” is to strictly comply with the statute. Because this may be a semantic
point, and because Port Authority does not seem to dispute that a substantial compliance standard
would require reinstatement of the judgment even as regards wrongful death, plaintiff notes that at
the very least so far as then practicable signifies the Legislature’s incorporation of a substantial
compliance standard.
8
to New Jersey’s construction of its companion statute. MCK. UNCONSOL. LAWS §
7112. New Jersey’s high court has long-established that the suability statute
incorporates a substantial compliance standard; Zamel v. Port Auth. of N.Y., 264 A.2d
201 (N.J. 1970); and our Section 7112 mandates a harmonious New York
interpretation so as to afford equal treatment to citizens of both states. And third,
the intent of the New York Legislature supports a substantial compliance
interpretation.
1. The Text of the Suability Statute’s Notice of Claim Provision
Permits Substantial Compliance
(a) The Fourth Notice of Claim Component
With regard to the first reason for construing the suability statute to permit
substantial compliance, the statute’s text requires this interpretation for amended
claims resulting from additional damages or injuries based on the same underlying
misconduct or transaction. MCK. UNCONSOL. LAWS § 7108. The addition of the
wrongful death claim falls under Section 7108’s fourth component to the extent that
the plaintiff’s death from his injuries caused by the defendant’s misconduct may be
seen to “enlarge the scope” of plaintiff’s claims “to embrace” additional injuries,
namely, those resulting from Mr. Andrucki’s death. Holmes v. City of New York, supra,
269 A.D. 95, 98.
9
Appellate decisions in New York have deemed the plaintiff’s death, resulting
from the same misconduct that caused her injuries, to constitute “additional
damages.” De Brino v. Benaquista & Banaquista Realty, Inc., 154 A.D.2d 812, 812 (3d
Dep’t 1989) (“Here, the wrongful death action is predicated upon the same
occurrence as that asserted in the initial complaint and the third-party complaint. No
new liability theory has been proclaimed. Indeed, all that has been alleged is
additional damages, a not uncommon circumstance in a negligence case. B & N, a
participant in the litigation early on, was fully aware that a claim was being made
against it as a result of the incident giving rise to this law suit”).
The 1945 Appellate Division decision in Holmes, adopted and approved by this
Court, similarly explains that, while the wrongful death statute “technically” creates a
new cause of action on behalf of the statutory beneficiaries, “substantially, and
considering the nature of the redress to be afforded, it is a continuation of the
original cause of action for the benefit of those dependent on the services or bounty
of the deceased who have been injured by the personal wrong done to him . . ., and
enlarges its scope to embrace the injury resulting from his death.” Holmes, 269
A.D.2d 95, 98.
Plaintiff acknowledges that, in other contexts, the technical distinction between
the survival and wrongful death causes of action will be controlling. For example, in
the very different context underlying this Court’s decision in Heslin v. County of Greene,
10
14 N.Y.3d 67 (2010), the question was whether a special infancy toll applicable in
wrongful death actions, based on the infancy of the distributee, should also apply
with regard to the survival claim when the beneficiaries of such claim are also
presently infants. This Court held that the toll was not available with respect to the
personal injury claims. The Court noted that the claims for the decedent’s pain and
sufferings and for other damages accruing to the estate should not await the
beneficiary’s adulthood, because, “[t]aken to its logical conclusion,” this position
would permit the personal injury claims belonging to the decedent to “potentially be
pursued more than a decade later . . ., impinging on the settled policies underlying
statutes of repose.” 14 N.Y.3d 67, 78.
This Court’s concerns in Heslin in the context of the infant tolling provision of
CPLR 208 do not pertain in the present case, in which the repose policy
considerations are not at play. Rather, this case aligns with Holmes, wherein the
essential objectives of the notice of claim requirement were seen to have been
satisfied by virtue of the pre-death notice of claim. For present purposes, as
defendant concedes, “[t]he holding in Holmes is basically codified in E.P.T.L. § 11-
3.3(b)(2)” [D/B, at 41]. That provision prescribes that, “Where an action to recover
damages for personal injury has been brought, and the injured person dies, as a result
of the injury, before verdict, report or decision, his personal representative may
enlarge the complaint in such action to include the cause of action for wrongful death
11
under [E.P.T.L. §] 5-4.1.”
As the Appellate Division indicated in Holmes, language such as that in E.P.T.L.
§ 11-3.3(b)(2) “enlarges the scope” of plaintiff’s right of action “to embrace the injury
resulting from his death,” Holmes, 269 A.D. at 98, and thereby constitutes an
enhancement of the item of “injuries claimed to have been sustained” for purposes of
the fourth prong of Section 7108 of the suability statute. See also Ramos v. New York
City Transit Auth., 60 A.D.3d 517, 519 (1 Dep’t 2009) (“it cannot be disputed that thest
wrongful death claim results from the same facts as were alleged in a timely and
otherwise admittedly valid notice of claim for personal injuries[ and] the wrongful
death claim simply adds an item of damages that must be proven by the aggrieved
party”). In this respect, the text of the suability statute incorporates a substantial
compliance standard, and plaintiff’s notice of claim in the present case thereby
satisfied the statute’s condition precedent to bringing her wrongful death claims.
(b) The Second Notice of Claim Component
As a further matter, even if the addition of a wrongful death claim falls not
under the fourth notice of claim component, but rather under the second
component, which requires that the notice “set forth . . . (2) the nature of the claim,”
then plaintiff’s notice of claim should still be deemed to have adequately done so.
The phrase nature of the claim requires judicial interpretation, and that somewhat open-
12
textured phrasing, in conjunction with the intent and purpose of the notice of claim
requirement, warrant the conclusion that a notice of claim must substantially comply
with the requirement that it provide the “nature” of the claim.
As Port Authority has conceded, the purpose of the notice of claim
requirement is “to provide the Port Authority with sufficient information to
meaningfully investigate the claim” [D/B, at 4]. The opinion of the Second Circuit in
Aegis Insurance, supra, noted that New York courts have not addressed “the specificity
with which a plaintiff must state the ‘nature’ of its claim in order to satisfy the notice
of claim requirements of Section 7108.” Aegis Ins. Servs. v. Port Auth., supra, 435 Fed.
Appx. 18, 25 (2d Cir. 2011). The Second Circuit explained that, in the case before it,
plaintiff’s “notice describing Port Authority’s negligence in the construction and
placement of the diesel fuel tanks gave the Port Authority no warning of need to
investigate claims asserting unrelated negligence in the design and construction of
7WTC.” 435 Fed. Appx. 18, 26.
That a plaintiff ultimately, and tragically, succumbs to his injuries caused by
defendant’s misconduct does not entail a different sort of “investigation” by the Port
Authority into “unrelated negligence” in which it was alleged to have engaged. See
Brown v. City of New York, 95 N.Y.2d 389, 393 (2000) (“The test of the sufficiency of a
Notice of Claim is merely ‘whether it includes information sufficient to enable the
city to investigate’ . . . [C]ourts should focus on the purpose served by a Notice of
13
Claim”) (citations omitted). In a similar vein, the nature of a claim is adequately
stated when it permits the defendant to “begin to frame a response.” Robbins v.
Coca-Cola-Company, ¹ 13-CV-132 – IEG (NLS), 2013 U.S. Dist. LEXIS 72725, at *9
(S.D. Cal. May 22, 2013) (citation omitted).
None of this is to say that a personal injury or survival claim is precisely the
same as a wrongful death claim for all purposes. The claims are, of course,
technically different, and certainly this difference will be significant in certain
contexts, such as in Heslin. The question, however, is whether the Port Authority
suability statute necessarily requires the filing of an amended notice of claim, upon
the plaintiff’s death from injuries previously noticed, as a requisite to the prosecution
of the wrongful death action. Section 7107 of the suability statute requires only that,
at least sixty days before the filing of suit for compensatory damages, “a notice of claim
shall have been served upon the port authority . . . .” MCK. UNCONSOL. LAWS §
7112 (emphasis added). This requirement was complied with. For this reason, in the
Decision and Order below, entered September 9, 2011, by the Honorable Sherry K.
Heitler [A. 70], the court concluded that, “contrary to defendant’s unsupported
assertion plaintiffs were under no obligation to file a new action against the Port
Authority or to obtain a new index number. [MCK. UNCONSOL. LAWS] § 7107 does
not require it, nor would same promote the statute’s purpose” [A. 74].
Because the original notice of claim adequately allows the defendant to
14
investigate the claim, to begin to frame a response, and to understand precisely what
tortious misconduct is being alleged, the second notice of claim component should
be construed to require substantial compliance. Aristide v. New York, 493 N.Y.S.2d
247, 251 (Sup. Ct., Kings County, 1985) (“The purpose of a notice of claim is to give
the municipality notice so it may investigate. This purpose is accomplished and, in
fact, more so than if service of a notice of claim is delayed to allow appointment of a
personal representative. Thus, a notice of claim which alleged that a plaintiff suffered
only personal injuries has been deemed sufficient to provide notice of a wrongful
death action brought later when the plaintiff died as a result of those injuries”).
2. The Legislature Required the New York Suability Statute and the
New Jersey Companion Statute to Have “An Identical Effect”
Apart from the issue of whether there is textual support, in the suability
statute’s notice of claims provision, for construing that provision to permit
substantial compliance, the bi-state legislative scheme warrants this conclusion.
Section 7112 of the suability legislation prescribes, “This act shall take effect upon the
enactment into law by the state of New Jersey of legislation having an identical effect
with the provisions of this act; but if the state of New Jersey shall have already
enacted such legislation, then this act shall take effect immediately.” MCK.
UNCONSOL. LAWS § 7112 (emphasis added).
15
Again with reference to Justice Heitler’s September 9, 2011 Decision and
Order below, the court therein reasoned that “New Jersey cases analyzing the
concurrent New Jersey statute (N.J. Stat. § 32:1-163 [2011]) suggest that the
conditions precedent found therein are intended to provide ‘adequate time for
investigation and reasonable opportunity for the preparation of its defense,” as well
as a ‘reasonable opportunity to effect a settlement before the institution of suit’” [A.
74] (quoting Zamel, supra, 264 A.2d 201, 203; Pardo v. Port Auth. of New York & New
Jersey, ¹ 08-CV-1311, 2009 U.S. Dist. LEXIS 18192, at *8-9 (D.N.J. Mar. 9, 2009)).
The New Jersey high court settled the substantial compliance issue in Zamel in
1970, and to effectuate the legislative goal that this bi-state compact be applied with
“an identical effect,” the New Jersey determination should at the very least be
deemed strongly persuasive authority. The agreement between the states that this
parallel legislation would have an identical effect upon the citizens in both states is
backed by Federal constitutional authority; U.S. CONST. Art 1, Sec. 10, Cl. 3; pursuant
to which Congress consented to the compact. See Crusader Servicing Corp. v. Port Auth.
of New York & New Jersey, 902 A.2d 272, 274 (N.J. App. Div. 2006) (“Bistate entities,
in contrast to individual sovereign states, typically are creations of three discrete
sovereigns: two States and the Federal Government.” . . . “Compact Clause entities
owe their existence to state and federal sovereigns acting cooperatively, and not to
any ‘one of the United States’”) (quoting Hess v. Port Authority Trans-Hudson Corp., 513
16
U.S. 30, 40-42 (1994)).
Nor would a substantial compliance construction depart from traditional New
York notice of claim standards. As stated, in Holmes this Court affirmed the
conclusion that an estate administrator may have the benefit of a notice of claim filed
with the municipality by the intestate prior to her death. 295 N.Y. 615, 616. That
case arose in the context of a New York City Administrative Code provision that
contained no textual support for a substantial compliance standard regarding notices
of claim. See New York City, N.Y., Code § 7-201 (2013).
Subsequently, Section 50-e of the General Municipal Law, pertaining to claims
against a municipal entity, included a subsection permitting omissions in the notice of
claim to be corrected, GEN. MUN. LAW § 50-e(6), but no such provision was present
in Holmes. In Scheel v. City of Syracuse, 97 A.D.2d 978 (4 Dep’t 1983), for example, theth
Appellate Division relied on Holmes in concluding that, “[s]ince defendant was served
with a notice of claim for personal injuries, no additional notice of claim for wrongful
death was required.” 97 A.D.2d at 978. The Court separately cited Section 50-e(6)
for the proposition that plaintiff should be granted leave to amend her municipal
notice of claim. Id; see also Ramos, supra, 60 A.D.3d 517, 520 (1 Dep’t 2009) (“therest
can be no dispute that the facts giving rise to the wrongful death claim are identical to
that series of events which formed the basis for the original claim for personal
injuries”); Mingone v. State, 100 A.D.2d 897, 898 (2d Dep’t 1984) (citing Holmes,
17
concluding “that the notice of claim relating to an action to recover damages for the
personal injuries sustained by the decedent, which was timely served on the county
during her lifetime, was sufficient to provide notice of the wrongful death action
brought on behalf of her husband and children after she died as a result of the
injuries sustained in the same accident”); Aristide, supra, 493 N.Y.S.2d 247, 251 (“a
notice of claim which alleged that a plaintiff suffered only personal injuries has been
deemed sufficient to provide notice of a wrongful death action brought later when
the plaintiff died as a result of those injuries”); Mazzio v. New York, 99 N.Y.S.2d 95,
97-98 (Sup. Ct., Kings County, 1950) (“under the rationale of Holmes . . ., the filing of
a new notice of claim for the wrongful death action would be unnecessary, since a
proper notice of claim for decedent’s personal injuries had previously been timely
served”).
The Port Authority ignores the fact that Holmes preceded the General
Municipal Law provision that Port Authority claims is requisite to triggering a
substantial compliance standard. Port Authority further says that “[t]he Legislature
had § 50-e available to them while drafting the Suability Statute, yet explicitly decided
to omit the language of § 50-e(6), which expressly adopts the doctrine of substantial
compliance, from the Suability Statute” [D/B, at 14-15].
First, however, it is completely false that the Legislature “explicitly decided to
omit the language of Section 50-e(6).” There is absolutely no evidence of any
18
consideration and rejection of such language. Quite the contrary, the 1950 Legislative
Annual reports that, on behalf of his committee, D. Mallory Stephens, a principal
sponsor of the suability statute, cited specifically to General Municipal Law § 50-e as
illustrative in explaining that “[t]he consent is limited by the usual conditions
generally imposed upon suits against governmental bodies.” Memorandum by
Assemblyman D. Mallory Stephens, reported in New York State: 1950 Legislative
Annual, p. 204 [P/B, at Addendum].
Second, nor could the New York version of the suability statute have
coherently incorporated the General Municipal Law language unique to New York’s
statutory scheme. As stated, the legislatures of both New York and New Jersey
recognized and prescribed that this bi-state compact must have “an identical effect”
in both states. MCK. UNCONSOL. LAWS § 7112; N.J. Stat. Ann. § 32:1-176 (“This act
shall take effect upon the enactment into law by the state of New York of legislation
having an identical effect with the provisions of this act; but if the state of New York
shall have already enacted such legislation, then this act shall take effect
immediately”).
In these respects, the United States Supreme Court has explained, “Bistate
entities occupy a significantly different position in our federal system than do the
States themselves. . . . Compact Clause entities formed to deal with ‘broad,
region-wide problems’ should not be regarded as ‘an affirmation of a narrow concept
19
of state sovereignty,’ but as ‘independently functioning parts of a regional polity and
of a national union’.” Hess, supra, 513 U.S. 30, 40 (citing Frank P. Grad, Federal-State
Compact: A New Experiment in Cooperative Federalism, 63 COLUM. L. REV. 825, 854–855
(1963)). The First Department’s decision appealed from, by rejecting the significance
of New Jersey’s substantial compliance construction of the bi-state suability
legislation [A. 545], applied the “narrow concept of state sovereignty” the Supreme
Court warned against in Hess.3
In the context of Compact Clause entities, identical suability statutes enacted in
the participating states should be construed so as to avoid placing them in conflict
with one another. Cf. Palmquist v. Johnson, 41 So.2d 313, 316 (Fla. 1949) (“It is a duty
of the court to find for apparently conflicting statutes a reasonable field of operation
which may preserve the force and effect of each statute and cause them to
harmonize, if possible, by a fair, strict or liberal construction thereof”); Cimo v. State,
306 N.Y. 143, 149 (1953).
Although Port Authority now holds out the Ogdensburg Bridge Authority as a
“bi-state entity” that incorporates the General Municipal Law § 50-e substantial
compliance provision, in purported contrast to the Port Authority suability statute
Port Authority quotes Hess for the proposition that “‘Bi-state entities created by3
compact are not subject to the unilateral control of any one of the States that compose the federal
system’” [D/B, at 26] (quoting Hess, 513 U.S. 30, 42. This principle, however, supports plaintiff’s,
not Port Authority’s, position. This is the principle that counsels a conciliation between the New
York and New Jersey approaches to waiver of sovereign immunity.
20
[D/B, at 24-25], it is clear that the Ogdensburg Bridge Authority is not a bi-state or
Compact Clause entity. There is only one state involved in that entity – New York.
Ogdensburg represents a cooperative venture as between New York State and
Canada, with regard to certain transportation on the St. Lawrence River at
Ogdensburg, New York. It is precisely for that reason that reference to Ogdensburg
helps prove the plaintiff’s point. New York intends for its interstate or international
transportation authorities to incorporate a fair and reasonable substantial compliance
standard upon their consent to waive sovereign immunity.
Unlike the Ogdensburg Bridge Authority, falsely held out by Port Authority to
exemplify another bi-state compact for purposes of comparison, the Waterfront
Commission Act, N.Y. Unconsol. Laws, §§ 9801 et seq.; N.J. Stat. Ann. §§ 32:23-1 et
seq., is a bi-state entity. The decision in Continental Terminals, Inc. v. Waterfront Comm’n of
New York Harbor, 486 F. Supp. 1110 (S.D.N.Y. 1980), emphasizes “the importance of
uniformity of interpretation of the compact.” 486 F. Supp. at 1113. The court
continued that “uniform construction of the Act is essential to prevent inconsistent
enforcement of its requirements in New York and New Jersey. For example it would
be inequitable to impose on a New York warehouseman the economic burdens
associated with being a ‘stevedore,’ and not impose those burdens on a New Jersey
warehouseman doing substantially the same business.” Id. The decision in Continental
Terminals thereby reveals the critical importance of equal treatment of citizens within
21
both states affected by a bi-state compact.
One further way in which the New York and New Jersey legislatures sought to
engender an identity of content and uniformity of application of the companion Port
Authority suability statutes was by including a temporal component within the acts.
As shown, the statutes in both states require that they have “an identical effect,” and
toward this end further require that they shall take effect at the same time, as much as
this is possible. MCK. UNCONSOL. LAWS § 7112; N.J. Stat. Ann. § 32:1-176. For a
similar reason, the substantial compliance standard adopted by now-settled law in
New Jersey should be deemed strongly persuasive.
Aligning with that principle, for instance, the Federal court in Asiana Airlines,
Inc. v. Port Auth. of New York & New Jersey, ¹ 96 CV 1470, 1996 WL 480797
(E.D.N.Y. Aug. 8, 1996), concluded that it “agree[d] with Zamel . . ., a case
interpreting New Jersey’s equivalent to § 7108, that the requirement of a notice of
claim ‘was simply designed to afford the Authority adequate time for investigation
and reasonable opportunity for the preparation of a defense [or] to effect a settlement
before the institution of suit’,” and thereby applied a substantial compliance standard
to the New York provision. Asiana, 1996 WL 480797, at *3.
More recently, the Federal court in Privat Air, S.A. v. Port Auth. of New York &
New Jersey, ¹ 05-CV-2213 (DLI) (RLM), 2007 WL 2089285 (E.D.N.Y. July 19, 2007),
teed this very issue up once again. The Privat Air court agreed that there was a strong
22
“need for consistent enforcement of New York’s and New Jersey’s statutory
prerequisites to suit against the Port Authority, especially because the statutes are
identical.” 2007 WL 2089285, at *3.4
In its brief, defendant attempts to deal with the need for uniformity by
claiming that the New Jersey Supreme Court wrongly decided Zamel [D/B, at 32-34].
The decision in Zamel, however, effectuated the legislative intent fostering the bi-state
compact, and also well served the companion statutes’ remedial purposes with regard
to Port Authority’s proprietary accountability [see P/B, at 35-36; see also infra
subsection B(3)].
At the very least, however, the congressional and bi-state intent that
concurrence be paramount, and that the “identical” bi-state legislation affect citizens
of both states in an equal way, overrules defendant’s claim, and necessarily renders
the well-established New Jersey construction highly persuasive authority in the
present case. See generally Koenig v. Patrick Const. Corp., 298 N.Y. 313, 317 (1948) (“it is
our judgment that both sound reason and persuasive decisions, involving statutes
whose content and purpose are similar to those of section 240, require the
conclusion” that renders the similar statutes consistent); Courtesy Sandwich Shop, Inc. v.
Port of New York Auth., 12 N.Y.2d 379, 391 (1963) (congressional consent “expressly
The Privat Air court nevertheless felt “bound,” absent guidance from this Court with4
regard to this particular statute, to fulfill its Erie obligations by applying New York’s general strict
compliance principle.
23
contemplated . . . co-operative legislation . . ., binding upon both States with the same
force and effect”); State v. Barquet, 262 So.2d 431, 435 (Fla. 1972) (“where the federal
and state statutes are similar and intended to accomplish like objects, state courts, in
construing the state statute, although not bound to follow the construction put on the
federal statute by federal courts, will be strongly inclined to follow the federal court
construction, especially where the state statute was purposely modeled upon the
corresponding federal statute”); Keller v. Lonsdale, 339 P.2d 112, 115 (Or. 1959) (taking
as highly persuasive decisions “where the several courts construe assumed name
statutes which are alike or substantially like our own”).
3. This Court Should Consider the Legislative Intent, the Proprietary
Context of This Action, And Other Policy Principles
This brief and plaintiff’s main brief have shown that the legislative intent
underlying the Port Authority suability statute aligned with the substantial compliance
standard. While defendant asks this Court not to consider the “quotes from
newspapers” included within the Addendum to plaintiff’s main brief [D/B, at 2], it
says nothing about the significant pieces of original legislative history also included
therein. In addition to the Stephens Memorandum referenced above, for instance, is
the Ways and Means Committee note stating that the suability act “[p]rovides for
agreement between N.Y. state and N.J. as to suits and proceedings against N.Y. port
24
authority and to appeals therefrom and reviews thereof” [P/B, at Addendum]. This
means that the Legislature intended not solely a uniformity in the text of the
companion New York and New Jersey statutes, but also that the courts would
construe and apply the bi-state statutes harmoniously in the various “proceedings”
and “appeals” and “reviews” that may occur in the prosecution of claims against the
Port Authority.
Given the Supreme Court’s understanding that bi-state entities “occupy a
significantly different position in our federal system than do the States themselves,”
such that “narrow concept[s] of state sovereignty” be deemphasized; Hess, supra, 513
U.S. 30, 40; given the New York legislative reference to such notice of claims
provisions as Section 50-e as illustrative of the suability statute’s intended operation,
and given the settled New Jersey substantial compliance approach, it seems fair to
conclude that the legislative intent in New York was similarly to apply a substantial
compliance standard, or at least to remain open to such an approach in the interests
of continued bi-state harmony and concurrence.
Accordingly, the next question is whether principles of statutory construction
in New York allow for the consideration of legislative intent and other significant
factors, in addition to a narrowly textual interpretation. This Court has instructed
that, as a matter of statutory construction, a court must “attempt to effectuate the
intent of the Legislature.” Patrolmen’s Benevolent Ass’n of City of N.Y. v City of New York,
25
41 N.Y.2d 205, 208 (1976). While the statutory text is generally the clearest indicator
of legislative intent, this Court has relied upon legislative materials when the
meanings of certain phrases in the text may be deemed to be equivocal or uncertain.
Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583-87 (1998)
(considering “[m]emoranda issued contemporaneously with the passing and signing
of the Act”).
It has been shown that phrases such as “the nature of the claim,” “items of damage or
injuries,” and the intent that the bi-state companion legislation have “an identical effect,”
warrant interpretation that goes beyond a narrow textual reading. Policy
considerations, the Supreme Court’s counsel that “narrow concept[s] of state
sovereignty” be set aside when construing legislation effectuating bi-state compacts,
the need to treat the citizens of the two states equally, and the likely intent of the
drafters, support the application of a substantial compliance standard with regard to
the notice of claim requirements of the Port Authority suability statute.
As a further important consideration, to the extent that the Court deems this
action to arise in the context of the negligent exercise of Port Authority’s proprietary,
as opposed to government, functions, then any restrictions placed on plaintiff’s
abilities to bring suit – i.e., the notice of claim provision – is itself deemed to be in
derogation of the common law, and must be construed liberally in the claimant’s
favor. See Miller v. City of New York, 187 Misc. 926, 928, 63 N.Y.S.2d 44 (Spec. Term,
26
Kings County, 1946) (“It may further be pointed out that the restrictions imposed by
the statute upon these suits against the public corporation for acts arising out of
proprietary, as distinguished from governmental functions, are in derogation of the
common law and it is appropriate, therefore, to give liberal force to any statutes
protecting the rights of the public in dealing with a public corporation in connection
with such proprietary functions”).
In In re World Trade Center Bombing Litig.: Steering Comm. v. Port Auth. of New York
& New Jersey, 17 N.Y.3d 428 (2011), this Court reaffirmed that “‘the State may act in
its proprietary capacity as a landlord by virtue of its ownership of and control over a
public facility and at the same time act in its governmental capacity by providing
police protection to maintain law and order at that facility.’” 17 N.Y.3d at 462
(quoting Sebastian v State of New York, 93 N.Y.2d 790, 793-794 (1999)). Discussing the
government entity’s “continuum of responsibility to individuals and society deriving
from its governmental and proprietary functions,” this Court’s World Trade Center
Bombing opinion would appear to locate construction and premise maintenance-
related activities, as opposed to large-scale security measures, at the proprietary
function end of the spectrum. 17 N.Y.3d 428, 463; see Blue Fox Bar, Inc. v. City of5
This Court’s World Trade Center Bombing opinion announcing a proprietary-5
governmental “continuum,” accounts for Section 6610 of the N.Y. Unconsolidated Laws; 17
N.Y.3d 428, 433; which calls “effectuation of the world trade center . . . an essential government
function,” but necessarily reads this in conjunction with, and balances it against, the language of
(continued...)
27
Yankton, 424 N.W.2d 915, 918 (S.D. 1988) (by undertaking construction and
maintenance, “the city acted in a proprietary capacity and, therefore, may be held
liable in tort for wrongs committed in its exercise of this function”); Whittaker v.
Village of Franklinville, 265 N.Y. 11, 15-16 (1934) (when fulfilling “the duty of keeping
a street itself reasonably safe because of its condition . . ., the duty is quasi private or
corporate in its nature”).
If this Court agrees that the misconduct alleged in this case arose from Port
Authority’s proprietary functions, the principle announced in Miller v. City should be
deemed in effect, and this would be a further and independent reason to deem the
substantial compliance standard applicable with regard to the suability statute’s notice
of claim provision. Moreover, this understanding further strengthens the persuasive
impact of the New Jersey determination in Zamel.6
(...continued)5
Section 7106, which prescribes that, “[a]lthough the port authority is engaged in the performance of
governmental functions, the said two states consent to liability on the part of the port authority in
such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as
though it were a private corporation.” N.Y. Unconsol. Laws § 7106 (emphasis added); see World Trade
Center Bombing, 17 N.Y.3d 428, 441.
Also instructive in this regard is the Illinois case of McClintock v. Bi-State Dev. Agency,6
591 N.E.2d 967 (Ill. App. 1992). The Bi-State Development Agency is an interstate compact
formed by Missouri and Illinois in 1949. McClintock resolves the strict construction/substantial
compliance distinction by explaining the court’s construction of the analogous notice of claim
provision in the following way:
The primary purpose of this notice requirement is to furnish timely notice of injury
so that a public entity can investigate and make prompt settlement of meritorious
claims, and also to give notice to a public entity of possible liability so that budgetary
provisions may be knowledgeably arranged. . . . As with the Tort Immunity Act
(continued...)
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C. THE TRIAL COURT PROPERLY ENTERED A DEFAULT
JUDGMENT AGAINST DEFENDANT PORT AUTHORITY
To the extent that the court had subject matter jurisdiction over some or all
claims against Port Authority, the default judgment entered January 30, 2012, by the
Honorable Martin Shulman should be reinstated. Notwithstanding defendant’s view
of the situation, this is not a question of whether “Port Authority should be punished
for its decision not to attend trial” [D/B, at 44]. Rather, Port Authority clearly and
intentionally defaulted on its obligations within the judicial system, and its
commitments to the people of New York, pursuant to Section 3215 of the CPLR.
The court and the parties were thereby entitled to closure of this action, and a final
resolution of plaintiff’s compensatory claims, as against Port Authority without
further waste of judicial and litigant resources.
Section 3215 prescribes, in relevant part:
When a defendant has failed to appear, plead or proceed to trial of an
action reached and called for trial, or when the court orders a dismissal
for any other neglect to proceed, the plaintiff may seek a default
(...continued)6
itself, the notice requirement is in derogation of common law and must therefore be strictly construed
against the local public entity . . . and liberally in favor of the injured party . . . Accordingly,
this court has long recognized that rigid compliance with the statute is not required.
Substantial compliance will suffice. The test is whether the elements of the notice
have been set forth with sufficient clarity and accuracy so as to not mislead or
prejudice the public entity. Where no prejudice has occurred, the notice is sufficient.
McClintock, 591 N.E.2d 967, 970-71 (adding emphasis, omitting citations); see generally Zamel, supra,
264 A.2d 201, 203 (“we find nothing whatever in the pertinent statutory history or terminology to
indicate that our Legislature ever meant to exclude the highly just doctrine of substantial compliance
which is so well designed to avoid technical defeats of valid claim”).
29
judgment against him. If the plaintiff’s claim is for a sum certain or for a
sum which can by computation be made certain, application may be
made to the clerk within one year after the default. The clerk, upon
submission of the requisite proof, shall enter judgment for the amount
demanded in the complaint or stated in the notice served pursuant to
subdivision (b) of rule 305, plus costs and interest.
CPLR 3215(a); see Koppell River Realty, Inc. v. Rodriguez, 85 A.D.3d 520, 520 (1 Dep’tst
2011) (in granting plaintiff’s motion for a default judgment “Supreme Court
providently exercised its discretion in finding that appellants’ tactical choice not to
answer the complaint was not an excusable mistake”); Wilf v. Halpern, 234 A.D.2d
154, 154 (1 Dep’t 1996) (“An intentional default is ipso facto inexcusable”).st
As Justice Shulman explained to Port Authority during the post-trial default
proceedings:
I don’t believe and I’m not aware of any case law that allows one to take
the position that when an issue of subject matter jurisdiction is at play
without its resolution, that we can make a decision not to participate in
the litigation process and just not show up. I don’t understand that. . . .
To me, against, there can’t be an excusable default [here], and I
understand the intentional act. The question becomes, I’m not
suggesting in any way that you are in contempt, do not assume that, I’m
just trying to deal with it empirically, an intentional nonappearance in a
court of a litigation process because of a reliance on a particular
position, does that get you over the hurtle of excusable default? . . . I
don’t believe I read any case in your memorandum of law that
support[s] that.
[A. 37-39].
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CONCLUSION
For all of the reasons stated herein and in plaintiff’s original brief, plaintiff
respectfully requests that the Appellate Division’s May 28, 2013 Decision and Order
appealed from be reversed, and that the judgment entered against Port Authority on
January 30, 2012, be reinstated in whole or in part, as established above.
Dated: New York, New York
April 1, 2014
Respectfully submitted,
WEITZ & LUXENBERG, P.C.
By:__________________________
Alani Golanski, Esq.
700 Broadway
New York, New York 10003
(212) 558-5500
Attorneys for Plaintiff-Appellant
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/s/ Alani Golanski