To be Argued by:
CHRISTIAN H. GANNON
(Time Requested: 30 Minutes)
APL-2013-00262
New York County Clerk’s Index No. 190377/10
Court of Appeals
of the
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,
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,
(For Continuation of Caption See Reverse Side of Cover)
BRIEF FOR DEFENDANT-RESPONDENT
On the Brief:
CHRISTIAN H. GANNON
DAVID S. KOSTUS
SEGAL MCCAMBRIDGE SINGER
& MAHONEY, LTD.
Attorneys for Defendant-Respondent
The Port Authority of New York
and New Jersey
850 Third Avenue, Suite 1100
New York, New York 10022
(212) 651-7500
Date Completed: March 5, 2014
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Respondent,
– and –
TISHMAN LIQUIDATING CORP., TISHMAN REALTY & CONSTRUCTION
CO., INC. and TURNER CONSTRUCTION COMPANY,
Defendants.
i
TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 5
I. The Suability Statute ............................................................................................ 5
II. Underlying Facts/Procedural History ............................................................... 6
III. The First Department’s Ruling ......................................................................... 9
LEGAL ARGUMENT .............................................................................................10
I. The First Department Correctly Found Subject Matter Jurisdiction Lacking. ..10
A. The First Department’s Decision was based upon the Plaintiff’s initial
failure to comply with the Suability Statute. .....................................................13
II. Plaintiff Misreads the Suability Statute and Mischaracterizes Its Legislative
History. .....................................................................................................................14
A. The Newspaper Articles Plaintiff Submits On The “Background” Of The
Suability Statute Should Not Be Considered. ....................................................14
B. Plaintiff’s reliance on references by Legislators regarding General
Municipal Law § 50-e is misplaced. ..................................................................14
C. New York Jurisprudence has long recognized the differences between
General Municipal Law, § 50-e and the Suability Statute on Substantial
Compliance ........................................................................................................19
D. Plaintiff’s Argument Regarding the Phrase “so far as then practicable” in
New York Unconsol. Laws § 7108(4) is unavailing. ........................................20
E. The New York Legislature has explicitly used General Municipal Law
§50-e as the controlling Notice of Claim provision for other Bi-State
Entities ...............................................................................................................24
ii
III. As a Bi-State Entity Created in Concert by the States of New York and New
Jersey as well as Congress, the Port Authority Cannot Have Its Laws Unilaterally
Changed by a Compact State ...................................................................................25
A. Because the Port Authority was created by an act of Congress, a state
judiciary and legislature does not have the power to unilaterally modify its
sovereignty. ........................................................................................................25
IV. Despite Plaintiff’s contentions, New Jersey law is generally not binding on
the New York Courts. ..............................................................................................29
A. Plaintiff’s argument implying that due to the bi-state nature of the Port
Authority and the Suability Statute, New Jersey law should be binding in New
York, is misguided .............................................................................................29
V. Plaintiff’s Original Notice of Claim Cannot be Used for the Amended
Complaint Under New York Law ............................................................................36
A. Without the Benefits of E.P.T.L. § 11-3.3(b)(2), a New Notice of Claim
was Required to Comply with the Suability Statute. .........................................41
VI. Plaintiff’s Argument Regarding the Default Judgment Entered Below is
Without Merit. ..........................................................................................................44
CONCLUSION ........................................................................................................49
iii
TABLE OF AUTHORITIES
Cases
Agesen v. M.P. Catherwood,
26 N.Y.2d 521, 525 (1990) ...................................................................................26
Aristide v. City of New York,
129 Misc.2d 483, 487 (Sup. Ct., Kings Cty, 1985) ....................................... 37, 40
Bailey v. Port Authority of New York and New Jersey,
216 A.D.2d 42 (1st Dep't 1995) ............................................................................27
Bell v. Bell,
83 N.J. 417, 424 (1980) ........................................................................................27
Bickerton,
232 N.Y. 1, 133 N.E. 41 (1921) ............................................................................21
Borough of Moonachie v. Port of New York Authority,
38 N.J. 414 (1962) ........................................................................................ 34, 35
City of New York v. Globe Neon Tube Corp.,
147 Misc. 515, 264 N.Y.S. 331 (Spec. Sess. 1933) ................................. 11, 12, 21
Dezaio v. Port Authority of New York & New Jersey,
205 F.3d 62 (2d Cir. N.Y. 2000) ...........................................................................27
Erie R.R. v. Tompkins,
304 U.S. 64 (1938) ................................................................................................36
Evans v. Port Authority of New York & New Jersey, 192 F. Supp. 2d 247, 281-82
(S.D.N.Y, 2002) ....................................................................................................27
Gianone v. Port Authority of New York and New Jersey, 127 A.D.2d 818 (2nd
Dept. 1987 .............................................................................................................11
iv
Gonzalez v. New York City Housing Auth.,
77 N.Y.2d 663, 569 N.Y.S.2d 915, 572 N.E.2d 598 (1991) ................................44
Goodman v. Port Authority of New York & New Jersey,
2013 U.S. Dist. LEXIS 134921 at *23, 27 (S.D.N.Y. 2013)................................28
Grant v. Guidotti,
414 N.Y.S.2d 171 (2nd Dept. 1979) .....................................................................23
Lafever v. NY/NJ Port Authority, et al.,
2012 N.J. Super. Unpub. LEXIS 1500, at *14 (Law Div. June 22, 2012) ...........34
Luciano v. Fanberg Realty Co.,
102 A.D.2d 94, 475 N.Y.S.2d 854 (1984) ..................................................... 11, 17
MacDonald v. City of Beacon,
269 A.D. 754 (2nd Dept. 1945) ............................................................................37
Malverty v. Waterfront Commission,
71 N.Y.2d 977 (1988) ...........................................................................................27
Megrant Properties, Inc. v. The Port Authority of New York and New Jersey, 191
Misc.2d 334, 740 N.Y.S.2d 849 (N.Y. County 2002) ................................... 18, 19
Mingone v. State of New York,
100 A.D.2d 897, 898 (2nd Dept. 1984); .................................................. 37, 38, 39
Patel v. The Port Authority of New York and New Jersey,
184 A.D.2d 235, 586 N.Y.S.2d 747 (1st Dept. 1992) .........................................17
Port Authority of New York v. Ingram,
232 N.J. Super. 401, 405 (App.Div. 1989) ...........................................................27
Rao v. Port of New York Authority,
122 F. Supp. 595 (E.D.N.Y. 1954); ....................................... 30, 31, 32, 33, 34, 35
Recreation World, Inc. v. Port Authority of New York and New Jersey, et al.,
1998 U.S. Dist. LEXIS 2738 (S.D.N.Y. 1998),....................................... 30, 35, 36
v
Recreation World, Inc. v. Port Authority of New York and New Jersey, et al.,
1998 U.S. Dist. LEXIS 2738 (S.D.N.Y. 1998).....................................................30
Rose v. Port Authority,
13 F. Supp. 2d 516, 523 (S.D.N.Y. 1998); ...........................................................26
Scheel v. City of Syracuse,
97 A.D.2d 978 (4th Dept. 1983) .............................................................. 37, 39, 40
Schillinger v. United States,
155 U.S. 163 (1894) ........................................................................... 10, 30, 31, 34
Sharkey v. City of New York,
80 N.Y.S.2d 284 (Sup. Ct., Kings Cty., 1948) .....................................................37
Suggs v. Port Authority,
1999 U.S. Dist. LEXIS 6319, 7-8 (S.D.N.Y. 1999) .............................................26
Tarbell v. Ogdensburg Bridge & Port Authority,
23 A.D.2d 447 (3d. Dept. 1965), ..........................................................................25
Tyrrell v. City of New York, 159 N.Y. 239, 53 N.E. 1111 (1899) .........................21
Vernon v. Port Authority,
154 F.Supp.2d. 844, 850 (S.D.N.Y. 2001) ...........................................................27
Wassing v. Kennedy,
170 N.Y.S.2d 58 (Kings Cty. 1957) .....................................................................14
Zamel v. Port Authority of New York,
56 N.J. 1 (1970) ..................................................................... 29, 30, 31, 32, 33, 34
Statutes
42 U.S. Stat. 174 (1921) ............................................................................................. 6
C.P.L.R. § 3215 ........................................................................................................46
Ch. 151, Laws of N.J. (1921) ..................................................................................... 6
CMO § VI(d) (A-100-104). ....................................................................................... 8
vi
CMO § XVI 4-5, (A-216-218). .................................................................................. 8
CMO § XVI 9 ............................................................................................................ 8
CPLR § 3125 .............................................................................................................. 9
CPLR § 3211(a)(2) ..................................................................................................... 8
E.P.T.L. § 11-3.2 ......................................................................................... 42, 43, 44
E.P.T.L. § 5-4.1 ........................................................................................................43
Education Law § 3813 .............................................................................................20
General Municipal Law § 50-e ........ 14, 15, 16, 17, 18, 19, 23, 24, 25, 28, 37, 39,40
General Municipal Law § 50-e(6) ....................................... 15, 16, 17, 18, 23, 24, 37
N.Y. Unconsol. Law § 7101, et seq…………………………………….1, 16, 35, 44
N.Y. Public Authorities Law § 1397 (1958) ............................................................25
New York Unconsolidated Laws §§ 7101, 7107, and 7108 (McKinney 2000) 5, 10,
17, 19, 20 21, 24
Ch. 154, Laws of N.Y. (1921) ................................................................................... 6
N.Y. Public Authorities Law § 1378 .......................................................................24
1
PRELIMINARY STATEMENT
In order for a court to acquire subject matter jurisdiction over a claim against
Defendant-Respondent The Port Authority of New York and New Jersey (“the Port
Authority”), the plaintiff must file and serve on the Port Authority a notice of claim
at least 60 days prior to commencing suit. N. Y. UNCONSOL. LAW §§ 7107, 7108.
(McKinney 2000) (“the Suability Statute”). It is undisputed that neither Plaintiff
Mary Andrucki, individually and as Adminstratrix of the Estate of George P.
Andrucki (“plaintiff”), nor anyone else filed and served a pre-suit notice of the
Estate’s wrongful death and survival claims before she initiated the instant action
against the Port Authority. Compliance with the pre-suit notice requirement is a
mandatory condition precedent to maintaining a suit against the Port Authority.
Where, as here, a plaintiff fails to abide by the notice requirement, she deprives the
courts of subject matter jurisdiction over any claims she may possess against the
Port Authority. The Appellate Division, First Department properly concluded that
subject matter jurisdiction was lacking and dismissed the case.
Plaintiff argues that a notice of common law personal injury and consortium
claims filed by Mr. and Mrs. Andrucki in their individual capacities before he
passed should be deemed sufficient to satisfy the Suability Statute’s notice
requirements for purposes of the wrongful death and survival claims subsequently
brought by Mrs. Andrucki as Adminstratrix of decedent’s estate. But as the
2
Appellate Division correctly observed, under well-settled New York law,
“compliance with [§ 7108’s] notice requirement is mandatory and must be strictly
construed.” (App. at A-546 (internal quotes and citations omitted)). Plaintiff,
therefore, “should have served on the Port Authority a new notice of claim
concerning the wrongful death and survivorship actions.” (Ibid.) The Appellate
Division should be affirmed.
In order to set the stage for her challenge to the Appellate Division’s
conclusion, plaintiff includes in her brief a section purporting to provide
background on the Suability Statute. Here, plaintiff relies almost exclusively on
quotes from newspaper articles. (Brief for Plaintiff at 13-16.) Plaintiff did not cite
the articles before the Appellate Division. And the articles and their contents are
not bona fide legislative history, but inadmissible double-hearsay. The articles
should not be considered by this Court.
The substantive arguments plaintiff posits do not support, much less require
reversal.
For example, plaintiff incorrectly contends that the wrongful death and
survival action first brought against the Port Authority in an amended complaint is
merely a continuation of the common law negligence action stated in the original
complaint. But as plaintiff necessarily concedes, although incorrectly named in the
original complaint, the Port Authority was not a proper party defendant to the
3
original action because Mr. and Mrs. Andrucki filed it before the statutory 60-day
waiting period ran. So the wrongful death and survival complaint filed in January,
2011, was not a continuation, but a new action vis-à-vis the Port Authority. And
prior to filing the new action – which asserts claims that were not and could not
have been included in the notice served prior to the original action – plaintiff failed
to comply with the Suability Statute’s jurisdictional notice requirement.
Next, despite a long and unbroken line of New York cases holding that the
Suability Statute must be strictly construed and applied, plaintiff contends that the
notice of personal injury claims should have been deemed notice of the
subsequently accruing wrongful death and survival claims. Plaintiff can cite to no
cases decided under the Suability Statute to support this contention. The Appellate
Division properly rejected this contention based on the Suability Statute’s plain
language and the New York courts’ consistent interpretation of it.
Plaintiff goes on to posit an interpretation of the Suability Statute’s “so far as
then practicable” clause at odds with its plain meaning and the context in which it
appears. The phrase “so far as then practicable” is not, as plaintiff seems to
suggest, somehow synonymous with “substantial compliance.” The concepts are
wholly unrelated. Simply put, the phrase “so far as then practicable” requires a
claimant to offer as full and complete a description of its claimed injuries and loss
as reasonably possible at the time of preparing and serving the notice. This is so
4
because the notice provision exists to provide the Port Authority with sufficient
information to meaningfully investigate the claim. So while a claimant need not
wait until it learns all claim-related details to give notice, it is also true that it may
not provide only a vague or perfunctory description of its claim if the statute’s
purpose is to be accomplished. Rather, a claimant must fairly and accurately
describe the nature and extent of its claim based on the knowledge and information
reasonably available to it at the time of giving notice. New York courts have never
wavered from strictly enforcing the Suability Statute’s provisions. Here, the First
Department correctly concluded that plaintiff failed to give the Port Authority
notice of the wrongful death and survival claims as mandated under the Suability
Statute.
Continuing on, plaintiff contends that, for consistency sake, New York
should follow New Jersey decisions that read the “substantial compliance” concept
into the Suability Statute. New York courts, including the First Department here,
however, have consistently rejected invitations to effectively amend the Suability
Statute by judicial fiat, as New Jersey has apparently elected to do. Indeed, the
better course would be for New Jersey to follow New York in holding that as a
statute abdicating sovereign immunity, the Suability Statute must be strictly
construed.
5
Finally, plaintiff chides the Port Authority for what it calls an “openly and
notoriously defiant” decision to stand on its lack of subject matter defense. In any
event, the First Department’s decision shows, the Port Authority advanced the
correct interpretation of the Suability Statute. Of course, if the Court agrees that
subject matter jurisdiction is lacking, it need not address the default issue.
STATEMENT OF THE CASE
I. The Suability Statute
The statutory provisions involved in this appeal are New York
Unconsolidated Laws §§ 7101, 7107, and 7108 (McKinney 2000). Section 7101
provides:
Upon the concurrence of the state of New Jersey in accordance with
section twelve hereof, the states of New York and New Jersey consent to
suits, actions or proceedings of any form or nature at law, in equity or
otherwise (including proceedings to enforce arbitration agreements) against
the Port of New York Authority (hereinafter referred to as the “port
authority”), and to appeals therefrom and reviews thereof, except as
hereinafter provided in sections two through five, inclusive, hereof.
Section 7107 states:
The foregoing consent is granted upon the condition that any suit, action or
proceeding prosecuted or maintained under this act shall be commenced
within one year after the cause of action therefor shall have accrued, and
upon the further condition that in the case of any suit, action or proceeding
for the recovery or payment of money, prosecuted or maintained under this
act, a notice of claim shall have been served upon the port authority by or on
behalf of the plaintiff or plaintiffs at least sixty days before such suit, action
or proceeding is commenced. The provisions of this section shall not apply
6
to claims arising out of provisions of any workmen’s compensation law of
either state.
And § 7108 states:
The notice of claim required by section [7107] shall be in writing, sworn to
by or on behalf of the claimant or claimants, and shall set forth (1) the name
and post office address of each claimant and of his attorney, if any, (2) the
nature of the claim, (3) the time when, the place where and the manner in
which the claim arose, and (4) the items of damage or injuries claimed to
have been sustained so far as then practicable. Such notice may be served in
the manner in which process may be served, or in lieu thereof, may be sent
by registered mail to the port authority at its principal office. Where the
claimant is a person under the age of eighteen years or is mentally or
physically incapacitated and by reason of such disability no notice of claim
is filed or suit, action or proceeding commenced within the time specified in
section seven hereof, or 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 seven hereof then any court
in which such suit, action or proceeding may be brought may in its
discretion grant leave to serve the notice of claim and to commence the suit,
action or proceeding within a reasonable time but in any event within three
years after the cause of action accrued. Application for such leave must be
made upon an affidavit showing the particular facts which caused the delay
and shall be accompanied by a copy of the proposed notice of claim if such
notice has not been served, and such application shall be made only upon
notice to the port authority.
II. Underlying Facts/Procedural History
The Port Authority is an agency of the States of New York and New Jersey
created by Compact consented to by the United States Congress. See Ch. 154,
Laws of N.Y. (1921); Ch. 151, Laws of N.J. (1921); 42 U.S. Stat. 174 (1921).
Pursuant to the 1921 Compact and subsequently enacted bi-State legislation, the
7
Port Authority operates various terminals, transportation, and other facilities of
commerce in the statutorily defined Port District, including the former World
Trade Center.
On October 4, 2010, the Port Authority was served with a Notice of Claim
by then-living claimant, George Andrucki, seeking to recover damages for injuries
allegedly sustained at the World Trade Center and by his spouse Mary Andrucki,
for loss of consortium. [A-87-88] On October 5, 2010, George Andrucki and Mary
Andrucki commenced a personal injury action and loss of consortium action
respectively against the Port Authority. [A-76-85] The Supreme Court, New York
County, did not have jurisdiction over this action because the action against the
Port Authority was commenced only one day, rather than at least sixty days, after
the Notice of Claim was served on the Port Authority.
On January 18, 2011, an Amended Verified Complaint was filed initiating
the instant wrongful death and survival action against the Port Authority. (A-89 –
A-98). Prior to doing so, neither the plaintiff nor anyone else filed or served on the
Port Authority the required pre-suit notice of the wrongful death and survivorship
claims.
On February 21, 2011, the Port Authority served on plaintiff an
Acknowledgment of Receipt of the Amended Complaint, as provided in a Case
8
Management Order (“CMO”) entered in the New York County Asbestos Litigation
(“NYCAL”). (A-100-104). By doing so, a defendant effectively interposes its
previously filed long-form Answer and standard defenses, cross-claims and
affirmative defenses. (Ibid.) The Port Authority’s standard NYCAL long-form
Answer includes lack of subject matter jurisdiction as a defense.
On May 23, 2011, and June 20, 2011, the Port Authority sent letters to the
plaintiff requesting consent to a “no opposition summary judgment motion” – a
stipulated dismissal procedure provided for under the NYCAL CMO – based on
lack of subject matter jurisdiction. See CMO § XVI 4-5. Plaintiff did not respond
to the Port Authority’s requests. Accordingly, on July 11, 2011, the Port Authority
filed an emergency motion to dismiss under CPLR § 3211(a)(2) arguing, inter alia,
that the court lacked subject matter jurisdiction based on plaintiff’s failure to
comply with the Suability Statute’s pre-suit notice requirement. See CMO § XVI
9. The trial judge declined to hear the motion and referred it to the NYCAL
administrative judge for ruling. Because the trial court lacked subject matter
jurisdiction, the Port Authority elected not to participate jury selection on July 11,
2011, or later trial proceedings commenced on July 26, 2011.
On August 22, 2011, plaintiff settled with all other defendants, trial
proceedings terminated, and the jury was discharged. On August 24, 2011, with
9
the Port Authority’s motion to dismiss still pending, plaintiff moved for default
judgment against it and sought an inquest on damages under CPLR § 3125. (A-
242).
On September 7, 2011, the administrative judge denied the Port Authority’s
motion to dismiss, finding the October 4, 2010, Notice of Claim “valid.” (A-70 -
A-75).
At a hearing held September 28, 2011, the trial court granted plaintiff’s
motion for default, refused to conduct an inquest, and assessed and awarded
damages against the Port Authority of $ 1 million on the survival claim, $1 million
on the wrongful death claim, and $500,000 on the loss of consortium claim. (A-61
– A-62; A-10 – A-13.)
III. The First Department’s Ruling
On May 28, 2013, the Appellate Division, First Department issued a
unanimous ruling vacating the judgment entered against the Port Authority and
dismissing the action for lack of subject matter jurisdiction. (A-543). It held that:
… In New York … compliance with the [Suability Statute’s] notice
requirement is “mandatory” and “must be strictly construed” (Lyons v. Port
Auth. of N.Y. & N.J.], 228 AD2d [250,] 251 [(1st Dept. 1996)]).
Plaintiffs argue that despite their initial failure to obtain subject matter
jurisdiction over defendant, they nonetheless obtained subject matter
jurisdiction through service of the amended complaint after decedent’s
death. This argument is unavailing. The initial notice of claim specifically
10
stated that it was for personal injury arising from the asbestos exposure and
not for the decedent’s death, which had yet to occur. ***
… Under these circumstances, plaintiffs should have served on the
Port Authority a new notice of claim concerning the wrongful death and
survivorship actions.
(A-546 – A-547).
On September 12, 2013, this Court granted plaintiff leave to appeal
from the Appellate Division’s judgment.
LEGAL ARGUMENT
I. The First Department Correctly Found Subject Matter Jurisdiction Lacking.
In 1921, New York and New Jersey created the Port Authority under a
compact which received Congressional approval under the Interstate Compact
Clause to engage in activities relating to interstate commerce and transportation.
See Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 35 (1994). In 1950,
the states enacted the Suability Statute waiving the Port Authority’s sovereign
immunity provided specified conditions are met. Legislation in derogation of
sovereign immunity must be strictly construed. Schillinger v. United States, 155
U.S. 163 (1894). In order for a court to have subject matter jurisdiction over a
claim against the Port Authority the plaintiff must strictly comply with the
Suability Statute’s pre-suit notice provisions (§§ 7107 and 7108). Lyonsv. Port
Authority of New York and New Jersey, 228 A.D.2d 250, 251 (1st Dept. 1996);
11
Gianone v. Port Authority of New York and New Jersey, 127 A.D.2d 818 (2nd
Dept. 1987); Luciano v. Fanberg Realty, 102 A.D.2d 94 (1st Dept. 1984).
Compliance with the statute “is mandatory and jurisdictional.” Lyons, 228 A.D.2d
at 251. Because the Suability Statute’s requirements are jurisdictional, “it must be
strictly construed.” Id.; accord Luciano, 102 A.D.2d at 97-98. Defects in a notice
of claim may not be judicially waived or forgiven. City of New York v. Port
Authority of New York and New Jersey, 284 A.D.2d 195 (1st Dept. 2001).
Accordingly, where a plaintiff brings an action against the Port Authority but fails
to comply with the Suability Statute’s pre-suit notice requirements, the complaint
must be dismissed for lack of subject matter jurisdiction. Id.
Under § 7108, the pre-suit notice must “be in writing, sworn to by or on
behalf of the claimant or claimants, and set forth (1) the name and post office
address of each claimant and of his attorney, if any, (2) the nature of the claim, (3)
the time when, the place where and the manner in which the claim arose, and (4)
the items of damage or injuries claimed to have been sustained so far as then
practicable.” As the First Department found, the October 4, 2010 Notice of Claim
served before decedent’s death did not – because it could not – comply with
several of § 7808’s requirements in the context of the wrongful death and
survivorship action brought against the Port Authority in January, 2011. It does
not identify the claimant, i.e., decedent’s estate, is not verified by or on behalf of
12
the estate, and does not state the nature of the claims asserted, when, where, or how
they arose, or the inquiries or damages claimed in the 2011 action. (A-87-88). “A
proper notice of claim is a jurisdictional prerequisite of a suit against [the Port
Authority] and, accordingly, defects in a notice of claim served upon [the Port
Authority] may not be judicially waived where, as here, there is no statutory
authority for such waiver.” City of New York, 284 A.D.2d at 195.
Additionally, it is clear that the lack of a pending action against the Port
Authority when the Amended Complaint was served became a dispositive factor in
the decision. The plaintiff hasargued that, had a valid action been pending against
the Port Authority, E.P.T.L. § 11-3.3(b)(2) would have allowed the common law
negligence claims to be enlarged to encompass the statutory wrongful death claim.
However, E.P.T.L. § 11-3.3(b)(2) was inapplicable to this case because it is
undisputed that no valid claim was pending at the time of the decedent’s passing.
Similarly, the Port Authority does not dispute that the wrongful death statute would
have allowed the Estate to bring the new actions against the Port Authority after
the decedent passed. However, like any other claimant the Estate was required to
comply with the suability Statute, which it failed to do.
13
A. The First Department’s Decision was based upon the Plaintiff’s initial
failure to comply with the Suability Statute.
Unaddressed by the Plaintiff, the First Department clearly relied upon the
Plaintiff’s initial failure to comply with the Suability Statute in concluding that
there was no subject matter jurisdiction, stating:
Although plaintiffs’ counsel should have been aware of the time
requirements in the applicable statute, the service of the complaint
was premature, resulting in a lack of subject matter jurisdiction over
the Port Authority (see McKinney’s Unconsolidated Laws of NY §
7107 [requiring service of a notice of claim at least 60 days before
commencement of the action]; see e.g. Lyons v Port Auth. of N.Y. &
N.J., 228 AD2d 250 [1st Dept 1996]; Ofulue v Port Auth. of N.Y. &
N.J., 307 AD2d 258 [2d Dept 2003]; see also Campbell v City of New
York, 4 NY3d 200, 204 [2005]).
(A-544).
However, despite the First Department’s reliance on this set of facts,
Plaintiff largely fails to address this aspect of the First Department’s ruling in their
Brief. In fact, Plaintiff only notes the premature service of the original Complaint
on the Port Authority once in their sixty-three (63) page Brief. The one instance
that it is mentioned is actually in footnote 1 on page 8 of Plaintiff’s Brief. Notably,
the premature service of the original Complaint never appears in the actual body of
Plaintiff’s main argument.
14
II. Plaintiff Misreads the Suability Statute and Mischaracterizes Its Legislative
History.
A. The Newspaper Articles Plaintiff Submits On The “Background” Of The
Suability Statute Should Not Be Considered.
Plaintiff cites to newspaper articles claiming they provide background on the
Suability Statute. The articles and the quotes appearing in are hearsay and
inadmissible. Wassing v. Kennedy, 170 N.Y.S.2d 58 (Kings Cty. 1957).
Similarly, debates are generally not a useful tool in determining legislative intent.
They reflect only the stated views of the legislators who participate, but do not
serve as an indication of the combined opinions of their colleagues (see,
McKinney's Cons.Laws, Book 1, Statutes, s 125).
These materials were not before the First Department when their decision
was made, and should not be considered by this Court.
B. Plaintiff’s reliance on references by Legislators regarding General Municipal
Law § 50-e is misplaced.
In various parts of their Brief, Plaintiff argues that the intent of the New
York Legislature to have the Suability Statute parallel General Municipal Law
§50-e is evidence that the doctrine of substantial compliance was intended to be
included. However, the existence of General Municipal Law § 50-e at the time of
the drafting of the Suability Statute infers a finding of exactly the opposite. The
Legislature had §50-e available to them while drafting the Suability Statute, yet
15
explicitly decided to omit the language of §50-e(6), which expressly adopts the
doctrine of substantial compliance, from the Suability Statute. Thus, if anything,
Plaintiff’s own argument implies that the Legislature expressly intended to omit
substantial compliance from the Suability Statute.
Plaintiff argues that the legislative history shows an intent by the Legislature
that the requirements for suit under the Suability Statute and those under General
Municipal Law § 50-e should parallel each other. See Plaintiff’s Brief at p. 17. In
particular, they argue that:
Highly significant to the instant appeal, the legislative history shows
the clear intent of the New York legislature that the requirements for
suit under Section 7107 parallel those under General Municipal Law §
50-e, which was enacted just a few years prior in 1945. In a
memorandum supporting the enactment of the suability statute, the
bill’s Assembly sponsor explained that “[t]he consent is limited by the
usual conditions generally imposed upon suits against governmental
bodies” – and explicitly cited General Municipal Law § 50-e as the
prime illustration of those “usual conditions.”
Id.
Plaintiff goes on to cite this alleged symmetry multiple times, arguing, “Moreover,
the bill sponsor specifically compared the proposed suability statute to General
Municipal Law § 50-e to which there has never been any dispute that New York’s
doctrine of substantial compliance applies. Id. at 36.
16
Plaintiff’s reliance on the comparison’s to General Municipal Law § 50-e,
which they note was drafted a few years earlier, to attempt to imply that the
Suability Statute should be read to include substantial compliance is misguided.
Given that the legislatures of New York and New Jersey had access to General
Municipal Law § 50-e at the time that they drafted the Suability Statute, it would
have been a simple matter for them to incorporate all of General Municipal Law §
50-e’s language. Included in that language is General Municipal Law § 50-e(6),
which explicitly codifies the doctrine of substantial compliance.
Specifically, General Municipal Law, § 50-e(6) states:
6. Mistake, omission, irregularity or defect. At any time after the
service of a notice of claim and at any stage of an action or special
proceeding to which the provisions of this section are applicable, a
mistake, omission, irregularity or defect made in good faith in the
notice of claim required to be served by this section, not pertaining to
the manner or time of service thereof, may be corrected, supplied or
disregarded, as the case may be, in the discretion of the court,
provided it shall appear that the other party was not prejudiced
thereby.
In contrast, the Suability Statute was enacted by concurrent legislation of the
States of New York and New Jersey (N.Y. Unconsol. Law § 7101, et seq.; N.J.S.A.
32:1-157, et seq. (1963), giving consent to bring suits against the Port Authority in
actions or proceedings accruing after June 13, 1951, upon compliance with certain
17
jurisdictional conditions precedent. The legislation has requirements as to the
contents of the Notice of Claim required to bring suit that are very similar to those
set forth in General Municipal Law, § 50-e(2). New York Unconsolidated Laws §
7108 requires that:
The notice of claim required by section seven hereof shall be in
writing, sworn to by or on behalf of the claimant or claimants, and
shall set forth (1) the name and post office address of each claimant
and of his attorney, if any, (2) the nature of the claim, (3) the time
when, the place where and the manner in which the claim arose, and
(4) the items of damage or injuries claimed to have been sustained so
far as then practicable…
However, as has been noted by multiple courts, the statutory language of §
7108 contains no corollary to General Municipal Law, § 50-e(6). See Luciano v.
Fanberg Realty Co., 102 A.D.2d 94, 475 N.Y.S.2d 854 (1984) (specifically finding
that reliance on case law decided under the General Municipal Law was improper
for a case under the Suability Statute and stating that lack of substantial
compliance language prevents Court from waiving strict compliance); Patel v. The
Port Authority of New York and New Jersey, 184 A.D.2d 235, 586 N.Y.S.2d 747
(1st Dept. 1992) (applying Luciano and finding that a letter did not comport with
the notice of claim requirements and the Court could not waive the defect); Port
Authority of New York and New Jersey v. Barry, 15 Misc.3d 36, 833 N.Y.S.2d
839 (Appellate Term 2007) (dismissing defendant’s counter-claims for failure to
18
meet Notice of Claim requirements despite the fact that the Port Authority brought
the initial suit, and noting that lack of language similar to that contained in General
Municipal Law, § 50-e(6) prevented the Court from waiving any requirements);
and Megrant Properties, Inc. v. The Port Authority of New York and New Jersey,
191 Misc.2d 334, 740 N.Y.S.2d 849 (N.Y. County 2002) (finding that an
unverified but otherwise compliant Notice of Claim necessitated dismissal of the
suit due to Court’s lack of discretion to waive strict compliance with the
requirements of the Suability Statute).
Clearly, if Plaintiff was correct as to the intention of the Legislature to have
the requirements of General Municipal Law, § 50-e and the Suability Statute
parallel each other with regard to substantial compliance, then the Legislature
would have included language in the Suability Statute that paralleled General
Municipal Law, § 50-e(6). Plaintiff’s argument merely highlights the fact that the
Legislature intentionally omitted such language, which was already drafted and
clearly known to them, when enacting the Suability Statute. Given these facts, it is
impossible to find that the legislatures of New York and New Jersey had any
intention other than that the Suability Statute be strictly construed.
19
C. New York Jurisprudence has long recognized the differences between
General Municipal Law, § 50-e and the Suability Statute on Substantial
Compliance
The differences between General Municipal Law, § 50-e and the Suability
Statute are well documented.
In language similar to that contained in New York Unconsolidated Laws §
7108, General Municipal Law, § 50-e provides, in part that:
2. Form of notice; contents. The notice shall be in writing, sworn to by
or on behalf of the claimant, and shall set forth: (1) the name and post-
office address of each claimant, and of his attorney, if any; (2) the
nature of the claim; (3) the time when, the place where and the
manner in which the claim arose; and (4) the items of damage or
injuries claimed to have been sustained so far as then practicable…
Significantly, as discussed above, §50-e also contains a provision that
explicitly allows for a Court to disregard errors or omissions in a claimant’s Notice
of Claim where the mistake was made in good faith and the municipality itself is
not prejudiced.
Megrant Properties, Inc., supra, is instructive. There, the plaintiff wrote a
letter to the Port Authority asserting a claim for unpaid fees. The letter contained
all of the information generally required by New York Unconsolidated Laws §
7108, but it was not verified. The court noted that under other Notice of Claim
provisions, it would be able to cure the defect, stating:
20
With respect to similar notice of claim provisions in General
Municipal Law § 50–e … Education Law § 3813 … the Second
Department has repeatedly held that a lack of verification of the notice
of claim may be excused or corrected…
Id., at 335.
However, as the court noted, no such excuse or correction is available when
deciding cases under the Suability Statute:
There is clearly a difference between the power of a court in cases
decided under General Municipal Law § 50–e compared to those
decided under Unconsol. Laws § 7108, as the former contains
subdivision 6….Importantly, no similar provision appears in the
statutes governing claims against the Authority.
Id. at 336.
Based upon this lack of discretion with regard to substantial compliance, the
court in Megrant dismissed the claim, despite the plaintiff having served a timely
notice that met all of the informational requirements of the Suability Statute,
simply because it was not verified. This clearly displays how strict the compliance
with the Notice of Claim requirements must be in order to meet the standard set
forth in the Suability Statute.
D. Plaintiff’s Argument Regarding the Phrase “so far as then practicable” in
New York Unconsol. Laws § 7108(4) is unavailing.
Plaintiff makes an extensive argument in her Brief regarding the
phrase “so far as then practicable” and the implication that this language was
21
intended to introduce the doctrine of substantial compliance to the Suability
Statute. However, in attempting to apply the “so far as then practicable” language
to the entirety of Unconsol. Laws § 7108, rather than just subsection (4), where it
appears, Plaintiff is ignoring long-standing rules of statutory construction, and
even the rules of basic grammar. New York Unconsolidated Laws § 7108 requires
that:
The notice of claim required by section seven hereof shall be in
writing, sworn to by or on behalf of the claimant or claimants,
and shall set forth (1) the name and post office address of each
claimant and of his attorney, if any, (2) the nature of the claim,
(3) the time when, the place where and the manner in which the
claim arose, and (4) the items of damage or injuries claimed to
have been sustained so far as then practicable.
Although punctuation is subordinate to the text, and is never allowed to
control the plain meaning of a statute, it may be used to help determine the intent
of the Legislature. See Tyrrell v. City of New York, 159 N.Y. 239, 53 N.E. 1111
(1899); City of New York v. Globe Neon Tube Corp., 147 Misc. 515, 264 N.Y.S.
331 (Spec. Sess. 1933); In re Bickerton, 232 N.Y. 1, 133 N.E. 41 (1921). Here, the
punctuation of the statute makes clear that each of the four numbered subordinate
clauses is independently required by the phrase “shall set forth.” However, the
phrase that Plaintiff has chosen to focus on, “so far as then practicable,” is a part of
subordinate clause § 7108(4), and thus only modifies the preceding words “the
22
items of damage or injuries claimed to have been sustained.” There is no
punctuation, be it a comma or a semicolon, to suggest that the phrase “so far as
then practicable” modifies any other language in § 7108, other than subordinate
clause (4).
This is important, as Plaintiff spends nearly half of the Brief arguing that the
phrase “so far as then practicable” is applicable to the entirety of the Suability
Statute. See Plaintiff’s Brief at p. 30-53. Specifically, Plaintiff argues that strict
“construction” of the Suability Statute should have led the First Department to
“accept the applicability of the doctrine of substantial compliance to the suability
statute with regard to the content of notices of claim…” Id. at p. 31. This
argument is erroneous. Clearly, strict construction of the Suability Statute would
not impute “so far as then practicable” to all of the content requirements in § 7108,
but only to the damages provision in subsection (4).
In this matter, the First Department found that Plaintiff’s Notice of Claim
failed to fulfill the conditions precedent because it failed to meet the requirements
of § 7108(1) and (2). Specifically, the claimants listed in the Notice of Claim,
George Andrucki and Mary Andrucki, differ from those listed in the Amended
Complaint, the Estate of George Andrucki and Mary Andrucki, distributee of the
Estate of George Andrucki. Similarly, the claims alleged in the Notice of Claim
23
are both common law negligence claims, whereas the survival and wrongful death
actions alleged in the Amended Complaint are causes of action only available in
New York by statute. (See Grant v. Guidotti, 414 N.Y.S.2d 171 (2nd Dept. 1979),
extensively discussing the lack of an action at common law for wrongful death and
the development of wrongful death statutes.)
Given that the “so far as then practicable” language in § 7108 can clearly
only modify subordinate clause (4), the Courts lack the discretion to waive strict
compliance with the requirements of § 7108(1) and (2).
Notably, in arguing that the “so far as then practicable” language in § 7108
is meant to imply that the doctrine of substantial compliance is applicable to the
Suability Statute, Plaintiff once again invokes General Municipal Law § 50-e. See
Plaintiff’s Brief at p. 36. However, a comparison of the two statutes is once again
instructive. While Plaintiff argues that because both statutes include the language
of “so far as then practicable,” the Legislature must have intended both to include
substantial compliance; the opposite is clearly true. General Municipal Law § 50-e
includes the “so far as then practicable” language, and yet the Legislature still felt
the need to include an express substantial compliance provision in General
Municipal Law § 50-e(6). This is clear evidence that the Legislature did not intend
24
“so far as then practicable” to imply substantial compliance, as if they did it would
render General Municipal Law § 50-e(6) cumulative and irrelevant.
Whether reading New York Unconsol. Laws § 7108 in the strict
constructionist way that Plaintiff advocates, or reading it in comparison to General
Municipal Law § 50-e, it is clear that there was no intention for the doctrine of
substantial compliance to be applicable to the Suability Statute. Plaintiff’s own
arguments bear out this reading when examined more closely. As such, it is clear
that the First Department’s decision complied with both the intent of the Suability
Statute and the voluminous New York jurisprudence that has come since its
enactment, and should be affirmed by the Court of Appeals.
E. The New York Legislature has explicitly used General Municipal Law §50-e
as the controlling Notice of Claim provision for other Bi-State Entities
The Port Authority is not the only bi-state entity that Congress and the State
of New York have jointly created. In 1950, Congress (under P.L. 81-722), New
York (under N.Y. Public Authorities Law § 1378) and Canada (under I. Elizabeth
II, Ch. 57) jointly created the Ogdensburg Bridge Authority in order to regulate
and handle transportation systems on the St. Lawrence River near the area of
Ogdensburg, NY. Unlike in the Port Authority’s enacting statutes, the New York
Legislature, in enacting the Ogdensburg Bridge Authority, expressly set forth the
use of General Municipal Law § 50-e as the governing procedure for notice of
25
claim filing requirements in civil actions. See N.Y. Public Authorities Law § 1397
(1958). The Third Department, in Tarbell v. Ogdensburg Bridge & Port Authority,
23 A.D.2d 447 (3d. Dept. 1965), confirmed the Legislature’s express use of § 50-e.
To date, no court has identified the use of § 50-e as it pertains to the Port
Authority’s notice of claim requirements. It is telling that the New York
Legislature expressly mandated the use of § 50-e in civil claims involving the
Ogdensburg Bridge Authority upon its creation in 1950, but did not do so in
regards to the Port Authority’s notice of claim requirements, which were enacted a
year later.
III. As a Bi-State Entity Created in Concert by the States of New York and New
Jersey as well as Congress, the Port Authority Cannot Have Its Laws
Unilaterally Changed by a Compact State
A. Because the Port Authority was created by an act of Congress, a state
judiciary and legislature does not have the power to unilaterally modify its
sovereignty.
The Port Authority is a bi-state entity that is a product of a Compact between
the States of New York and New Jersey that was approved by Congress. While the
Port Authority is borne from Congress’ Article I enumerated powers1, statutory
1 "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or
Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with
a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will
not admit of delay." Article I, § 10, cl. 3.
26
control by the Compact States is fundamental so long as it is exercised jointly and
not unilaterally. Established case law has shown that unilateral conduct by one
state that affects the enterprise of a bi-state entity is improper because it contradicts
the nature of a bi-sovereign union. In this case, any attempt by either New York
and New Jersey to unilaterally modify the language or interpretation of the Port
Authority’s Suability Statute would violate the inherent makings of a bi-state
compact and leave the other state unvoiced and unrepresented in that process. As
per established and uncontested case law, any changes to the forms and function of
the Port Authority’s Suability Statute must be done through the joint coordination
of the Compact States.
The Supreme Court of the United States in Hess v. Port Authority Trans-
Hudson Corp., 513 U.S. 30 (1994) acknowledged the illegality of unilateral control
of the Port Authority. “Bi-state entities created by compact are not subject to the
unilateral control of any one of the States that compose the federal system.” Id. at
42. The impropriety of unilateral conduct, as it pertains to the Port Authority, has
been recognized by state and federal courts in both New York and New Jersey.2
2 “Either New York or New Jersey, acting alone, may block Port Authority measures; but both
states may increase the Port Authority’s powers or add to its responsibilities only by acting
together through their respective legislatures.” Suggs v. Port Authority, 1999 U.S. Dist. LEXIS
6319, 7-8 (S.D.N.Y. 1999); see Rose v. Port Authority, 13 F. Supp. 2d 516, 523 (S.D.N.Y.
1998); see also Agesen v. M.P. Catherwood, 26 N.Y.2d 521, 525 (1990) (holding that the
27
This Court, in Malverty v. Waterfront Commission, 71 N.Y.2d 977 (1988),
has also elaborated on the illegality of unilateral sovereign action in bi-state
entities. In Malverty, the Court of Appeals held that a New York law regarding
employment discrimination was inapplicable to the Waterfront Commission, which
is a bi-state entity created by a Compact between the States of New York and New
Jersey and approved by Congress. Specifically, this Court held that:
The absence from the text and legislative history of [the New York
statute] of any reference to the Waterfront Commission, coupled with
the absence of an express statement that the Legislature was amending
or supplementing the provisions of the ‘Compact’ and that [the
statute] would take effect upon the enactment by New Jersey of
legislation of identical effect, if it had not already done so, indicates
“internal operations of the [Port Authority] [should] be independent of the direct control of either
State acting without the concurrence of the other.”); see also Bailey v. Port Authority of New
York and New Jersey, 216 A.D.2d 42 (1st Dep't 1995) (affirming a lower court decision that the
New York Human Rights Law cannot apply against the Port Authority, a bi-state agency); see
also Evans v. Port Authority of New York & New Jersey, 192 F. Supp. 2d 247, 281-82
(S.D.N.Y, 2002) (“Defendants are correct that the respective antidiscrimination laws of New
York and New Jersey do not apply to the Port Authority because it is an agency created by an
interstate compact.”); see also Vernon v. Port Authority, 154 F.Supp.2d. 844, 850 (S.D.N.Y.
2001) ( “New York's anti-discrimination laws are not controlling with respect to the time
limitations that govern when an individual must file a charge of discrimination with the
EEOC.”); see also Dezaio v. Port Authority of New York & New Jersey, 205 F.3d 62 (2d Cir.
N.Y. 2000) (holding that the 180-day EEOC filing deadline applies to the Port Authority
regardless of the charging party’s status or laws of state where alleged discrimination occurred);
see also Bell v. Bell, 83 N.J. 417, 424 (1980) (“[A bi-state entity’s] primary purpose is to
cooperate in advancing the mutual interests of the citizens of both states by joint action to
overcome common problems. We fail to see how either state could enact laws involving and
regulating the bi-state agency unless both states agree thereto. To sanction such practice would
lead to discord and a destruction of the purposes for which such bi-state agencies are formed.”);
see also Port Authority of New York v. Ingram, 232 N.J. Super. 401, 405 (App.Div. 1989) (New
Jersey’s 6-year limitation period for contract claims cannot supersede the Port Authority’s one
year limitation rule).
28
that the New York Legislature never intended [the statute] to apply to
the Waterfront Commission.
Id. at 980.
“…New York [has] long held that in order to satisfy the ‘concurred in’ language of
a Compact, the legislatures of both states must do so ‘clearly and expressly’ by
enacting substantial identical legislation in both states.” Goodman v. Port
Authority of New York & New Jersey, 2013 U.S. Dist. LEXIS 134921 at *23, 27
(S.D.N.Y. 2013) (holding that “New York Courts have consistently held that a
party bringing an action against the Port Authority must strictly comply with the
conditions precedent pursuant to which the Port Authority waived its sovereign
immunity for a court to have jurisdiction over the action.”) (emphasis added)
Here in this matter, any efforts to change or modify the provisions or
interpretations of the Port Authority’s long-established Suability Statute would
constitute unilateral conduct and consequently violate the Port Authority’s bi-state
sovereignty and the constitutional protections that created it. Plaintiff-Appellant
has suggested that the standard set forth in
General Municipal Law § 50-e might apply to the Suability Statute, and has further
suggested that the New York Judiciary mirror the New Jersey Judiciary by
adopting a substantial compliance standard. Applying any standard to the Port
Authority’s notice of claim requirements, other than the strict compliance inferred
29
from the language of the statute itself, would radically change New York’s long-
standing and uncontested interpretation of the Suability Statute and contradict the
intent of the Legislature. Any change in the enforcement of the Suability Statute
must be determined by the New York and New Jersey legislatures, acting in
concert.
IV. Despite Plaintiff’s contentions, New Jersey law is generally not binding on
the New York Courts.
A. Plaintiff’s argument implying that due to the bi-state nature of the Port
Authority and the Suability Statute, New Jersey law should be binding in
New York, is misguided
In this matter, the issue of choice of law and whether New York law is
applicable to the issues at hand has not been raised. Since this matter is venued in
New York state court and Mr. Andrucki’s alleged exposure to asbestos occurred
within the realm of its jurisdiction, it is clear that no other jurisdiction’s laws shall
apply. However, Plaintiff’s counsel has introduced non-controlling New Jersey
case law that provides a diverging interpretation of the Port Authority’s Suability
Statute in the hopes of identifying a jurisdictional split that exists in light of the
Port Authority’s unique bi-state status.
Plaintiff relies on the New Jersey Supreme Court’s decision in Zamel v. Port
Authority of New York, 56 N.J. 1 (1970) to argue that both State’s legislatures
intended the doctrine of “substantial compliance” to be available under the
30
Suability Statute. Here, Appellant implies that New Jersey law is controlling and
that these decisions, despite being rendered in a separate jurisdiction hold more
weight than the law already established by the New York judiciary on this issue.
See Rao v. Port of New York Authority, 122 F. Supp. 595 (E.D.N.Y. 1954);
see also Recreation World, Inc. v. Port Authority of New York and New Jersey, et
al., 1998 U.S. Dist. LEXIS 2738 (S.D.N.Y. 1998).
Legislation in derogation of sovereign immunity must be strictly construed.
Schillinger v. United States, 155 U.S. 163 (1894). In Schillinger, the Court
explained:
The United States cannot be sued in their courts without their consent, and
in granting such consent Congress has an absolute discretion to specify the
cases and contingencies in which the liability of the government is
submitted to the courts for judicial determination. Beyond the letter of
such consent, the courts may not go, no matter how beneficial they may
deem or in fact might be their possession of a larger jurisdiction over the
liabilities of the Government.
Id. at 166.
The rule in Schillinger was specifically applied to The Port Authority in the
case of Rao v. Port of New York Authority, 122 F. Supp. 595 (E.D.N.Y. 1954).
This decision, which occurred 16 years before New Jersey’s Zamel decision, and
rendered only 3 years after the enactment of The Port Authority’s Suability Statute,
strongly iterates the strict construction of the infant Suability Statute:
31
The Port of New York Authority was created by compact between the
States of New York and New Jersey and is a body corporate and politic.
The statutes setting forth the conditions under which the said “Authority”
consented that it may be sued are clear and unambiguous; they provide that
the action must be commenced within one year from the time that the cause
of action accrued. Statutes wherein sovereign immunity against suit is
waived must be strictly construed. Schillinger, 155 U.S. at 163….The
period of time provided by the statutes here involved for the
commencement of an action may not be enlarged by the unilateral action
provided under Section 24 of the New York Civil Practice Act. Such an
enlargement would constitute a modification of the compact between the
States without the consent of one of the contracting parties. In view of the
foregoing it will be unnecessary to consider the adequacy of the notice of
claim.
Id. at 597 (emphasis added).
The Appellants, in any of their submitted appellate papers, have failed to
address the contemporaneity of Rao with the Suability Statute and its
acknowledgment of the inherent strict construction of the Statute. Rao was the
first to identify the concern for unilateral state action in a bi-lateral compact.
Specifically, the Court refused to permit an enlargement of time for the notice of
claim requirement and instead analyzed the Statute based upon its clear and
unambiguous meaning through the rationale of Schillinger.
Rather than address Rao, which based on age alone would be the best
indicator of the true intent of the Suability Statute, Appellants rely on the 1970
New Jersey case Zamel to show the existence of a fundamental difference in
32
interpretation of the Suability Statute. However, by engaging in this argument, it
shows that the New Jersey court in Zamel engaged in unilateral action by
reinterpreting the Suability Statute’s notice of claim requirement to accept
“substantial compliance.” As indicated supra, unilateral action that affects a bi-
state entity like the Port Authority violates the equal nature of a bi-state Compact,
and therefore violates the rights of the other state. Here, unilateral action by the
Zamel court is obvious since the decision in Rao, which was rendered 3 years after
the enactment of the Suability Statute, had recognized that the Statute requires an
interpretation of strict construction. Since Rao, New York courts3 have interpreted
the Statute as one with a strict construction with no controversy, while New Jersey
has unilaterally diverted the Statute’s notice of claim requirements to those of
substantial compliance with no joint coordination with New York. Moreover,
Appellant’s statement that “New Jersey courts were the first to address questions
regarding the sufficiency of a notice of claim under the new suability statute” is
clearly erroneous. Appellant’s Brief, p. 33.
In taking its unilateral action, the New Jersey Supreme Court in Zamel failed
to acknowledge the unique bi-state qualities of The Port Authority and the
3 While Rao was decided in the Eastern District, this Court adopted its holding in Trippe v. Port
of New York Authority, 14 N.Y.2d 119, 124-125 (N.Y. 1964) (acknowledging that Rao stood for
the proposition “as to this statute’s being clear and unambiguous and requiring strict
construction.”)
33
problematic effects of unilateral measures upon a bi-state entity. The Court relied
solely upon the legislative and jurisprudence histories of New Jersey in adopting
the doctrine of substantial compliance in the Suability Statute. Specifically, the
Court noted that “this doctrine of substantial compliance finds repeated recognition
in our cases;” and “our cases have construed formal statutory consents to suit in
liberal fashion.” Zamel, 56 N.J. 1 at 5 (emphasis added). Moreover:
In any event, the matter before us is simply one of legislative
understanding and contemplation; 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 claims.
Id. at 6.
Throughout its entire decision, the Zamel court failed to appreciate the bi-
state nature of The Port Authority and in the end unilaterally applied New Jersey
law without New York’s acknowledgment. Once again, this decision was rendered
years after the court in Rao and this Court in Trippe acknowledge the standard of
strict construction with regard to the Suability Statute.
While New Jersey courts have moved away from the original legislative
intent of The Port Authority’s Suability Statute, the courts of New York, ever since
Rao and Trippe, have continued to uphold it. In fact, in Yonkers Contracting
Company, Inc. v. Port Authority Trans-Hudson Corp., 93 N.Y.2d 375 (1999), a
decision that Appellant’s counsel failed to address in its papers, this Court held that
34
“The legislative intent to condition the waiver of sovereign immunity with respect
to the Port Authority on timely suit could not be more clear.” Id. at 379. Further,
this Court held that “Unconsolidated Laws § 7107 unambiguously allows an action
against the Port Authority only ‘upon the condition that any suit…prosecuted or
maintained under this act shall be commenced within one year.’” Id. (quoting N.Y.
Uncons. Laws of NY § 7107) (emphasis included)
Furthermore, a New Jersey court has recently identified the apparent
differences of interpretation of the Suability Statute by New York and New Jersey
courts – an issue that jeopardizes the bi-state harmony of The Port Authority.
While this court appreciates the strict compliance argument set forth by
Port Authority based on Rao and Schillinger, this court notes that those two
cases predate Zamel, and yet our Supreme Court in Zamel was willing to
apply substantial compliance to the statute in question. While the learned
courts of New York may have their own interpretation of the relevant
statutory timing requirements, this court is not bound by such.
Lafever v. NY/NJ Port Authority, et al., 2012 N.J. Super. Unpub. LEXIS 1500, at
*14 (Law Div. June 22, 2012).
In addition, prior to the Zamel decision, the New Jersey judiciary was
sensitive to the impact which decisional law can have on The Port Authority as an
agency of both New Jersey and New York. The Supreme Court of New Jersey in
Borough of Moonachie v. Port of New York Authority, 38 N.J. 414 (1962) opined
that:
35
Since the Authority is an instrumentality of New York and New
Jersey, it is eminently desirable, of course, that the path of judicial
decision in the courts of the two States be a common one.
Consequently, if the cited [New York] case were specifically in
point we would regard it as a highly influential precedent.
Id. at 425.
In Moonachie, the Supreme Court of New Jersey acknowledged the importance of
a unified bi-state compact that is observed by the States’ judiciaries at a time when
Rao itself first acknowledged the function and intent of the Suability Statute.
Additionally, The Port Authority would like to acknowledge the decision of
the Southern District of New York in Recreation World, Inc. v. Port Authority of
New York and New Jersey, et al., 1998 U.S. Dist. LEXIS 2738 (S.D.N.Y. 1998),
which was not presented in Appellants’ submitted papers but directly addresses the
issues at hand. In Recreation World, the plaintiff failed to comply with the 60-day
notice of claim requirement set forth in N.Y. Unconsol. Law § 7107. The plaintiff
argued that substantial compliance be read into the Suability Statute since it
believed that its participation in “lengthy and in-depth negotiations” with the Port
Authority prior to the 60-day deadline constituted a form of notice. Id. at *11.
Recognizing the Supreme Court’s decision in Hess, the Southern District noted
that the Supreme Court did not question the constitutionality of The Port
Authority’s suability legislation. Id. at *13. The court, as have all New York
36
courts that have come before it, applied the doctrine of strict construction because
the notice of claim requirement is a jurisdictional requirement. Id. at *12.
In identical fashion to the Appellant, the plaintiff in Recreation World relied
on New Jersey case law “to suggest the acceptability of the ‘substantial
compliance’ doctrine.” Id. at *13. The court found this reliance to be “unavailing”
based upon the premise of the Erie Doctrine, which holds that “New York law is
controlling with respect to plaintiff’s claims.” Id.; see Erie R.R. v. Tompkins, 304
U.S. 64 (1938) (holding that except in matters governed by the Constitution or by
acts of Congress, the law to be applied in any case is the law of the state).
Moreover, the court noted that “under New York law, ‘the fact that the Port
Authority may not have been prejudiced by the plaintiff’s failure to comply with
the statute is immaterial, since the requirement is jurisdictional and must be strictly
construed.’” Id. at *13-14 (citing Lyons v. Port Authority of New York & New
Jersey, 2283 A.D.2d 250, 251 (1st Dept. 1996)).
V. Plaintiff’s Original Notice of Claim Cannot be Used for the Amended
Complaint Under New York Law
Plaintiff goes to great lengths to claim that established precedent allows a
claimant in a wrongful death action to rely upon a Notice of Claim served during
the decedent’s lifetime where no action was previously pending. Specifically,
before the First Department, Plaintiff cited to six separate cases that allegedly
37
establish that an estate representative need not serve a second notice of claim after
the decedent did so during his lifetime: Holmes v. City of New York, 269 A.D. 95,
98(2nd Dept. 1945)(aff’d 295 N.Y. 615 (1945)); Mingone v. State of New York,
100 A.D.2d 897, 898 (2nd Dept. 1984); Scheel v. City of Syracuse, 97 A.D.2d 978
(4th Dept. 1983); MacDonald v. City of Beacon, 269 A.D. 754 (2nd Dept. 1945);
Aristide v. City of New York, 129 Misc.2d 483, 487 (Sup. Ct., Kings Cty, 1985);
Sharkey v. City of New York, 80 N.Y.S.2d 284 (Sup. Ct., Kings Cty., 1948).
Before this Court, Plaintiff has omitted MacDonald and Aristide, which like the
other four do not support Plaintiff’s argument.
Each of the cases that Plaintiff relies upon is easily distinguishable.
Generally, each of the cases cited relies upon the less stringent Notice of Claim
requirements contained in General Municipal Law, § 50-e, which explicitly allows
for substantial compliance in § 50-e(6). The Port Authority Suability Statute does
not provide for substantial compliance and it is well settled that the requirements of
its Notice of Claim requirements must be strictly adhered to. Further, each
decision cited by the Plaintiff is distinguishable specifically, as each decision is
based upon a fact pattern inapplicable to this case, and many involve instances
where a plaintiff was merely trying to amend a pending complaint.
38
Plaintiff relies heavily on the holding in Holmes v. City of New York, 269
A.D. 95, 98(2nd Dept. 1945)(aff’d 295 N.Y. 615 (1945)). However, at issue in
Holmes was whether or not the plaintiff would be allowed to amend a pending
complaint to include a wrongful death action. In that case, the lower court ruled
that under Section 120 of the Decedent Estate Law, the precursor to E.P.T.L. § 11-
3.3(b)(2), the plaintiff was able to continue the action stating, “In view of the
language used by the Legislature, it would seem that an action based on wrongful
death caused by injuries upon which an action for damages is pending
undetermined is not a new cause of action, but an enlargement of the old.” See
Holmes v. City of New York, 184 Misc. 344, 52 N.Y.S.2d 133 (Kings Cty. 1944).
Thus, the main case that the Plaintiff is relying on in this action actually involved
an issue that the Port Authority concedes - if the Plaintiff had a valid pending
Complaint against the Port Authority at the time of Decedent’s passing, they would
have been able to “enlarge” the Complaint under E.P.T.L. § 11-3.3(b)(2). What
Holmes clearly does not stand for is the principal that a decedent’s estate does not
need to comply with the provisions of the Suability Statute where no valid
Complaint is pending at the time of the decedent’s death.
Plaintiff also cites to Mingone v. State of New York, 100 A.D.2d 897, 898
(2nd Dept. 1984), which was also decided under General Municipal Law § 50–e.
While the Mingone case cites Holmes in coming to the conclusion that a wrongful
39
death action can be filed based upon a Notice of Claim filed while the decedent
was alive, the court ultimately dismissed the complaint on the basis that “no
administrator had been duly appointed to serve as the personal representative of the
decedent's estate at the time the summons was served,” and only an individual that
had received letters of administration was authorized to bring such a Complaint.
Mingone, 100 A.D.2d, at 899. Further, it is clear from the court’s discussion of
notice and the implication that the defendants are not prejudiced, that the court was
relying on a theory of substantial compliance. Id. at 898-99.
In Scheel v. City of Syracuse, 97 A.D.2d 978 (4th Dept. 1983), the court
directly linked both its decision and the 1945 holding in the Holmes case to the
substantial compliance provision of General Municipal Law, § 50-e:
Since defendant was served with a notice of claim for personal
injuries, no additional notice of claim for wrongful death was
required. Holmes v City of New York, 269 App Div 95, affd 295 NY
615. Therefore, we see no abuse of discretion in Special Term's order
granting plaintiff leave to amend the notice of claim (pursuant to
General Municipal Law, § 50-e, subd 6) to add a claim for wrongful
death. See also Collins v City of New York, 55 NY2d 646)
Id.
The court’s decision in Scheel clearly set forth that the mechanism by which a
Notice of Claim is amended to include a wrongful death action is substantial
compliance. As such, this decision clearly supports the Port Authority’s position
40
that such an amendment is not available in the matter at hand due to the strict
compliance required under the Suability Statute.
Aristide v. City of New York, 129 Misc.2d 483, 487 (Sup. Ct., Kings Cty,
1985) was the last case relied upon by the Plaintiff before the First Department for
the proposition that an estate representative need not serve a second notice of claim
when the decedent dies without a valid pending complaint. This case is similarly
inapplicable, and has been omitted in its current Brief. The court in Aristide
characterized the issue as such: “Hence, the controversy at bar really resolves itself
into only one issue, that is, whether the notice of claim requirement, set forth in
General Municipal Law § 50-e, is satisfied if the notice is filed by one who has not
yet received letters of administration.” Id. at 485-86. The holding of this matter
clearly has no effect on the case at bar, and serves merely to demonstrate that
Plaintiff was unable to find case law that actually supported their position.
A review of the cases relied upon by Plaintiff clearly displays that the
doctrine of substantial compliance is closely tied to the acceptance of non-
compliant notices of claim under General Municipal Law § 50-e. In fact, the
holding in Scheel v. City of Syracuse, supra, makes that relationship explicit by
tying the addition of a wrongful death claim to General Municipal Law, § 50-e(6).
Further, the case that Plaintiff relies on for the abundance of their argument,
Holmes v. City of New York, supra, involves a completely different factual
41
scenario regarding a plaintiff with a pending complaint. The holding in Holmes is
basically codified in E.P.T.L. § 11-3.3(b)(2); a statute which Plaintiff has conceded
is inapplicable due to the defects in the initial Complaint.
A. Without the Benefits of E.P.T.L. § 11-3.3(b)(2), a New Notice of Claim was
Required to Comply with the Suability Statute.
Plaintiff has argued that this case is not a matter of substantial compliance,
and that Mr. and Mrs. Andrucki complied with the Notice of Claim requirements
when serving the original Notice of Claim on October 4, 2010 by stating his
“damages or injuries are ‘so far as then practicable.’” See Plaintiff’s Brief at p. 27-
28. However, the Port Authority has never argued that the Notice of Claim was
invalid as originally served during Mr. Andrucki’s lifetime, or that the proper
information was not listed “so far as then practicable.” The lack of compliance in
this matter arose because Plaintiff’s Counsel proceeded to serve the Port Authority
with a Complaint less than sixty (60) days after the service of the October 4, 2010
Notice of Claim, alleging common law negligence related to Mr. Andrucki’s
alleged injuries. This Complaint has been described as a “nullity” by Plaintiff,
meaning that no valid Complaint was pending against the Port Authority when Mr.
Andrucki passed away on November 27, 2010.
42
Had there been a valid Complaint pending against the Port Authority, at that
point in time, plaintiff could argue that such a Complaint could have been enlarged
and amended pursuant to E.P.T.L. § 11-3.3(b)(2), which allows a personal
representative of the estate of the decedent to “enlarge” an existing complaint.
However, once Decedent George Andrucki died, he was no longer Plaintiff, and no
longer had a lawsuit pending in his name. Plaintiff has conceded in the Opposition
to the Port Authority’s Motion to Dismiss, that such is the case, as the original
Complaint was a nullity and that “at decedent’s death, no personal injury action
was commenced or pending against the Port Authority.” [A-222]
E.P.T.L. § 11-3.3(b)(2) allows the enlargement of a complaint to include an
action for wrongful death, it does so only “[w]here an action to recover damages
for personal injury has been brought…” In this matter, as no Complaint was
pending against the Port Authority before Decedent’s death, there was no “action
to recover damages for personal injury” brought, which Plaintiff could argue
would then be enlarged pursuant to the E.P.T.L. As such, it is undisputed that
Plaintiff was bringing an entirely new action against the Port Authority. Plaintiff
has argued that the Port Authority is misplaced in arguing that E.P.T.L. § 11-
3.3(b)(2) is the only method by which they could have continued this action,
stating that the holding in Holmes, supra, and the provisions of E.P.T.L. § 11-
43
3.3(b)(1) would be applicable. See Plaintiff’s Brief at p. 21-24. However,
Holmes, as discussed above, clearly involves an attempt to amend a complaint
where there is already a matter pending. See Holmes, 269 A.D. at 95 (stating
“After decedent's death plaintiff, as administrator of her estate, served a
supplemental complaint containing a cause of action for wrongful death on the
theory that the death resulted from the injuries.”) Further, E.P.T.L. § 11-3.3(b)(1),
while it does allow for a “new action” rather than an “enlargement,” contains no
language that would relieve a potential plaintiff from the Notice of Claim
requirements of the Suability Statute.
These new Plaintiffs, Mary Andrucki as Administratrix of the estate of
George Andrucki, and herself, individually as a distributee of his estate, were not
the original claimants named in the Notice of Claim served on the Port Authority
on October 4, 2010. Rather, the Notice of Claim was brought solely on behalf of
the then living Plaintiff George Andrucki and his wife Mary Andrucki. (A-86-88).
Further, the claims brought in the Amended Complaint are separate and distinct
from those stated in the Notice of Claim served on behalf of George Andrucki, and
in the Complaint filed on October 5, 2010. (A-86-88; A-76-85; A-89-99) Both the
Wrongful Death action, brought pursuant to E.P.T.L. § 5-4.1, and the Survival
action, brought pursuant to E.P.T.L. § 11-3.2, are statutory causes of action that did
44
not exist at common law. See Gonzalez v. New York City Housing Auth., 77
N.Y.2d 663, 569 N.Y.S.2d 915, 572 N.E.2d 598 (1991); see also Matter of Miller,
158 Misc. 775, 286 N.Y.S. 867 (N.Y.Sur. 1936). Similarly, N.Y. Unconsol. Law §
7101, et seq. is also statutory in nature, but exclusively governs Port Authority
service procedures. Therefore, this statute acts as the sole authority for the
appellate issues at hand.
Given that the action that was brought in the Amended Complaint was
completely separate and distinct from the information listed in the Notice of Claim,
there is no mechanism by which the two could be linked, other than the statutory
method of E.P.T.L. § 11-3.2 or the common law doctrine of substantial
compliance. Both of these mechanisms have been shown to be inapplicable to the
case at bar, and as such the Trial Court’s Judgment and underlying Orders must be
vacated for lack of subject matter jurisdiction, and all claims must be dismissed.
VI. Plaintiff’s Argument Regarding the Default Judgment Entered Below is
Without Merit.
Plaintiff makes a final argument in their brief, arguing essentially that the
Port Authority should be punished for its decision not to attend trial, despite the
fact that it had a pending Motion to Dismiss and that the Trial Court lacked subject
matter jurisdiction in this matter. They ask that the Court of Appeals reinstate the
45
default judgment based on the Port Authority’s alleged delinquencies at the trial
level. This argument has no validity.
First, while the First Department did not reach the issue, as it was rendered
moot, default was never properly entered against the Port Authority. Specifically,
at the September 28, 2011 oral argument of Plaintiff’s motion to enter default
judgment and request for an inquest, the Trial Court erred when it held that Justice
Heitler, the judge who previously denied the Port Authority’s motion to dismiss,
which was based on lack of subject matter jurisdiction, found the Port Authority to
be in default. [A-26]
Justice Heitler’s September 7, 2011 decision denying the Port Authority’s
motion to dismiss did not find that the Port Authority was in default, but merely
stated incorrectly that the Port Authority was in default due to the erroneous
assumption that an Answer had never been interposed on the Port Authority’s
behalf. [A-72] At the oral argument before Justice Shulman, the Trial Court
erroneously stated, “the issue here is, you are in default. Point One, that finding
has been made by Justice Heitler.” [A-26] Significantly however, a default was
never entered against the Port Authority, which had timely answered and made a
proper motion to dismiss. Thus, on September 28, 2012, the Trial Court erred in
46
holding that a default had been entered against the Port Authority by Justice Heitler
and in awarding Plaintiff with a judgment against the Port Authority.
Plaintiff does not directly address this argument in their Brief, instead
arguing that the Port Authority’s failure to appear at trial was an independent basis
for the entry of default. However, Plaintiff’s argument that there was a basis for a
finding that the Port Authority could have been in default ignores the fact that no
such finding was ever made. Judge Heitler stated that the Port Authority had
defaulted prior to her ruling based on an improper understanding of the record, and
the fact that the Port Authority had interposed an Answer in this matter. [A-72]
However, Judge Heitler’s statement does not actually constitute an entry of default.
In fact, the Port Authority could not have been in default at the time that Judge
Heitler issued her ruling, as the Port Authority had a motion to dismiss pending for
lack of subject matter jurisdiction. Procedurally, a party cannot have a Motion to
Dismiss pending while in default; as such, the Port Authority was not in default.
Judge Shulman then explicitly refused to make a finding of default,
specifically because he erroneously believed that Judge Heitler had made such a
finding. [A-26]. Significantly, the Order to Show Cause filed by Plaintiff seeking
Default Judgment and an Assessment of Damages was signed on August 30, 2011.
[A-240-41] As such, that Order was signed approximately one week before Judge
47
Heitler issued her decision denying the Port Authority’s Motion to Dismiss for lack
of subject matter jurisdiction. [A-75] C.P.L.R. § 3215 explicitly allows parties to
move for default judgment against parties already in default in an action. As
discussed above, the Port Authority could not procedurally have been in default
when that Order to Show Cause was signed, as Judge Heitler still had not decided
the Motion to Dismiss. Given the motion pending before the Court at the time,
Plaintiff’s Order to Show Cause seeking Default Judgment should not have been
allowed to be brought before the Court.
Plaintiff attempts to distract from the actual procedural errors in this case by
characterizing the Port Authority’s decision not to appear at trial as a malicious
decision. While it was a conscious decision on the part of the Port Authority not to
appear for trial, Plaintiff’s characterization is specious at best. The Port Authority
had a pending Motion to Dismiss based on lack of subject matter jurisdiction at the
time of trial. The Motion to Dismiss was made on an emergent basis prior to the
beginning of jury selection. Judge Shulman could have heard the matter himself as
an in limine motion, but instead referred the matter to Judge Heitler.
Subsequently, Judge Heitler did not hear oral argument on the Motion to
Dismiss, brought as an emergency application, until more than three weeks after it
was filed, and approximately one week after opening arguments were given in the
48
trial. Judge Heitler’s actual decision denying the Port Authority’s Motion to
Dismiss was issued on September 7, 2011, approximately two months after the
filing of the emergency application.
As was raised on oral argument before Judge Shulman, the Port Authority
participating in a trial where the Court did not have subject matter jurisdiction over
it could have resulted in a mistrial, at great cost to the other defendants and to the
Plaintiff. [A-27, 29, 35] As such, the Port Authority’s failure to appear at trial
cannot be deemed intentional and inexcusable. Rather, the Port Authority was
exercising its valid right to have its defenses adjudicated, and specifically the
defense of subject matter jurisdiction, which cannot be waived.
It is clear that default was never entered in this matter, and could not have
procedurally been proper to enter prior to Judge Heitler’s September 7, 2011
decision. As a consequence, the Order to Show Cause seeking Default Judgment
signed on August 30, 2011 was completely improper procedurally. Judge
Shulman’s judgment rests upon the finding of a default that did not exist and the
hearing of a Motion for Default Judgment brought against a party with a pending
dispositive motion.
Given the above facts, Plaintiff’s argument that the Port Authority’s failure
to appear at trial is a valid basis for granting their Motion for Leave to Appeal is
completely without merit. As such, we ask that the Motion be denied in full, and
that the Appellate Division, First Department's Order and Judgment be left
undisturbed.
CONCLUSION
For the reasons stated above, Defendant-Respondent Port Authority of New
York and New Jersey requests that the First Department's judgment be affirmed.
Dated: New York, New York
March 5, 2014
SEGAL McCAMBRIDGE SINGER &
MAHONEY, LTD.
Attorneys for Defendant-Respondent
The Port Authority of New York & New
Jersey
By:)Jf(a:
Christian H. Gannon
David S. Kostus
Kevin W. Turbert
850 Third A venue, 11th Floor
New York, New York 10022
(212) 651-7500
49