In the Matter of New York City Asbestos Litigation. Mary Andrucki, et al., Appellants,v.Aluminum Company of America, et al., Defendants, Port Authority of New York and New Jersey, Respondent.

Brief

N.Y.October 15, 2014

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 Suc- cessor to GRINELL VALVE CO., INC., KENTILE FLOORS, INC., KEYSPAN GENERA- TION, LLC, f/k/a LONG ISLAND POWER AUTHORITY, MARIO & DIBONO PLASTERING CO., INC. and OWENS-ILLINOIS, INC., Defendants, (Additional Caption on the Reverse) >> >> BRIEF FOR PLAINTIFF-APPELLANT WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 212-558-5500 Attorneys for Plaintiff-Appellant Of Counsel: Alani Golanski Daniel T. Horner Date Completed: November 13, 2013 To Be Argued By: Alani Golanski Time Requested: 30 Minutes PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Respondent, and TISHMAN LIQUIDATING CORP., TISHMAN REALTY & CONSTRUCTION CO., INC. and TURNER CONSTRUCTION COMPANY, Defendants. i STATEMENT PURSUANT TO RULE 500.13(a) As of the date of the completion of this Brief, with the exception of an action filed by the instant plaintiff on or about July 26, 2013, against Union Carbide Corporation, there is no related litigation pending before any court. ii TABLE OF CONTENTS Page Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The Background of this Case . . . . . . . . . . . . . . . . . . . . . . . 7 II. The First Department’s Ruling . . . . . . . . . . . . . . . . . . . . . 10 III. Background of the Suability Statute. . . . . . . . . . . . . . . . . . 12 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 I. The First Department’s Ruling Conflicts with Long- Settled Law in New York, Originating in the Second Department, that, for Notice of Claim Purposes, the Wrongful Death Action is a Mere Continuation of the Main Action Previously Noticed. . . . . . . . . . . . . . . . . . . . 18 A. New York Law Prescribes that a Second Post- Death Notice of Claim Is Not Required Where the Decedent Serves a Valid Notice During His Lifetime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 B. The Holmes Line of Cases Conflicts with the First Department’s Ruling Because They Speak to the Nature of the Notice Required and Are Not Based on Substantial Compliance . . . . . . . . . . . . . . . . . . . . 22 C. The Holmes Cases Are in Harmony with the Requirements of the Suability Statute . . . . . . . . . . 25 iii Page II. The First Department Erred in Concluding That Strict Construction of the Suability Statute Somehow Negated the “So Far As Then Practicable” Language Characterizing the Statute’s Notice of Claim Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. New Jersey Courts Were the First to Assess the Sufficiency of a Notice of Claim Served on the Port Authority and Correctly Applied the Doctrine of Substantial Compliance As a Basic Matter of Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . 33 B. Contrary to the First Department’s Understanding, New York Appellate Courts Have Not Developed a Strain of Case Law in Conflict with New Jersey On the Question of Substantial Compliance Under the Port Authority’s Suability Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 C. Contrary to the First Department’s Conclusion in This Case, Strict Construction of the Suability Statute As Called for Under New York Law Dictates the Same Result as Zamel . . . . . . . . . . . . . 43 III. The Trial Court Providently Exercised Its Discretion in Granting Plaintiff’s Motion for a Default Judgment . . . . 54 A. Port Authority’s Intentional Failure to Proceed to Trial Is an Independent and Inexcusable Basis for Default Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 B. By Failing to Appear At Trial, Port Authority Waived Its Right to Notice Regarding the Assessment of Damages Against It . . . . . . . . . . . . . 58 C. Justice Shulman’s Assessment of Damages Was Reasonable and Properly Based on the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 iv Page Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Addendum - Memorandum by Assemblyman D. Mallory Stephens, reported in 1950 Legislative Annual - Douglas Dales, Inquiry Demanded On Port Authority; Tolls, Salaries Hit, N.Y. TIMES, Jan. 11, 1950 - Dewey Aid Asked Against Port Body, N.Y. TIMES, Jan. 12, 1949 - Port Agency Bill Berated As ‘Trick’, N.Y. TIMES, Mar. 25, 1950 - Douglas Dales, Effort to Strip Port Authority of Its Legal Immunity From Suit Is Initiated, N.Y. TIMES, Feb. 22, 1950 - Dispute Continues Over Jersey Bill, N.Y. Times, Apr. 2, 1950 - Feb. 21, 1950, Bill Jacket, No. 2866, Ch. 301 - Sponsor's Statement, R. S. 32:1-157 et seq., Sen. No. 183, Mar. 5, 1951 - Governor Extends Youth Board’s Life, N.Y. TIMES, Apr. 2, 1950 v TABLE OF AUTHORITIES Cases: Page(s) 300 W. 46th St. Corp. v. Clinton Hous. W. 46th St. Partners L.P., 19 A.D.3d 136 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . 56 Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 120 (2012) . . . . . . . . . 28 Anderson v. John L. Haynes Constr. Co., 243 N.Y.140(1926) . . . . . . 50-51 Atlantic Aviation Corp. v. Port of New York Auth., 66 N.J. Super 15, 168 A.2d 262 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 33-34 Billman v. City of Port Jervis, 23 Misc.3d 1127(A) (Sup. Ct., Orange Cty., 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Borough of Moonachie v. Port of New York Authority, 38 N.J. 414,185 A.2d 207 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 37, 53 Caffaro v. Trayna, 35 N.Y.2d 245 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 25 City of New York v. Port Auth. of N.Y. & N.J., 284 A.D.2d 195 (1st Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 DaSilva v. C & E Ventures, Inc., 83 A.D.3d 551 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27, 46, 52 DeLeonibus v. Scognamillo, 183 A.D.2d 697 (2nd Dept. 1992) . . . . . . . . 26 Giannone v. Port Auth. of N.Y. & N.J., 127 A.D.2d 818 (2nd Dept. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Holmes v. City of New York, 269 A.D. 95 (2nd Dept. 1945) (aff’d 295 N.Y. 615 (1945)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 19, 20, 22, 23, 28 vi Holtz v. Wilson, 155 A.D.2d 803 (3rd Dept. 1989) . . . . . . . . . . . . . . . . . . 56 Ingle v. New York City Trans. Auth., 7 A.D.3d 574 (2nd Dept. 2004) . . 45 In re New York City Asbestos Litig. – D’Ulisse v. Amchem Prods., 16 Misc.3d 945 (Sup. Ct., N.Y. Cty., 2007) . . . . . . . . . . . . . . . 59-60 Kolnacki v. State, 8 N.Y.3d 277 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 48-49 Koppell River Realty, Inc. v. Rodriguez, 85 A.D.3d 520 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 58 Long Island RR v. State Bd. of Tax Commrs. , 231 N.Y. 221 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 51 Lounsbury v. Kiehl, 255 A.D.2d 774, 776 (3rd Dept. 1998) . . . . . . . . . . . 56 Luciano v. Fanberg Realty Co., 102 A.D.2d 94 (1st Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 38-41, 44, 47, 50 Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d 520 (1st Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 42 Mack v. City of New York, 265 A.D.2d 308 (2nd Dept. 1999) . . . . . . . . . 22 Mathews v. Port of New York Authority, 163 N.J.Super 83, 394 A.2d 172 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 50 Mergrant Props. v. Port Auth. of N.Y. & N.J., 191 Misc.2d 334 (Sup. Ct. New York 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Miller v. City of New York, 187 Misc. 926 (City Ct. Kings Cty.) . . . . . . . 36 Mingone v. State of New York, 100 A.D.2d 897 (2nd Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22, 24-25 Moore v. Melesky, 14 A.D.3d 757 (3rd Dept. 2005) . . . . . . . . . . . . . . . . . 22 Ofulue v. Port Auth. of N.Y. & N.J., 307 A.D.2d 258 (2nd Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 42 vii Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40, 46-47 Patel v. Port Auth. of N.Y. & N.J., 184 A.D.2d 235 (1st Dept. 1992) . . . . 42 Penn v. Amchem Prods., 81 A.D.3d 475 (1st Dept. 2011) . . . . . . . . . . . . . 60 Port Auth. of N.Y. & N.J. v. Airport Auto Services, Inc., 396 N.J. Super 427, 934 A.2d 665 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 41 Port Authority of N.Y. & N.J. v. Barry, 15 Misc.3d 36 (N.Y. Sup. App. Term., 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 43-44, 45 Privat Air, S.A. v. Port Auth. of N.Y. & N.J., 2007 WL 2089285 (E.D.N.Y. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 47-48, 51 Scheel v. City of Syracuse, 97 A.D.2d 978 (4th Dept. 1983) . . . . . . . . 23, 24 Sharkey v. City of New York, 80 N.Y.S.2d 284 (Sup. Ct., Kings Cty., 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Shea v. Incorporated Village of Head of the Harbor, 180 A.D.2d 675 (2nd Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . 26, 44-45, 51 Statum v. Lumberman's Mut. Cas. Co., 106 Misc.2d 442, 445 (NY. App. Term. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Taylor v. New Jersey Highway Auth., 22 N.J. 454, 126 A.2d 313 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-51 Wieder v. New York City Health & Hosps. Corp., 183 A.D.2d 677 (1st Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Wilf v. Halpern, 234 A.D.2d 154 (1st Dept. 1996) . . . . . . . . . . . . . . . . . . . 56 Winbush v. City of Mount Vernon, 308 N.Y. 327 (1954) . . . . . . . . . . 27-28 Yoo v. New York City Health & Hosps. Corp., 239 A.D.2d 267 (1st Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 viii Zamel v. Port of New York Auth., 56 N.J. 1, 264 A.2d 201 (1970) . . . . . . . . . . . . . . . . . . . . . . . . 30, 34-35, 39, 44, 49-50 Statutes: C.P.L.R. §3215(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 C.P.L.R. §3215(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-55, 58 C.P.L.R. §3215(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 58 C.P.L.R. § 5602(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C.P.L.R. § 5501(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Educ. Law § 2a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Educ. Law § 2b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 E.P.T.L. § 11-3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E.P.T.L. § 11.3-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Gen. Mun. Law § 50-e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23, 26, 36, 45 N.Y.C. ADC § 7-201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24 Unconsol. Laws § 7101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Unconsol. Laws § 7106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Unconsol. Laws § 7107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 Unconsol. Laws § 7108 . . . . . . . . . . . . . . . . . . . . . . . . 6, 11, 12, 18-19, 21, 26, 39, 44 Unconsol. Laws § 7112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16 ix Other Authorities: Dewey Aid Asked Against Port Body, N.Y. TIMES, Jan. 12, 1949 . . . . . . 13 Dispute Continues Over Jersey Bill, N.Y. Times, Apr. 2, 1950 . . . . . 15-16 Douglas Dales, Effort to Strip Port Authority of Its Legal Immunity From Suit Is Initiated, N.Y. TIMES, Feb. 22, 1950 . . . . . . . . . . . . . . . 15, 16 Douglas Dales, Inquiry Demanded On Port Authority; Tolls, Salaries Hit, N.Y. TIMES, Jan. 11, 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Feb. 21, 1950, Bill Jacket, No. 2866, Ch. 301 . . . . . . . . . . . . . . . . . . . . . . . 15 Governor Extends Youth Board’s Life, N.Y. TIMES, Apr. 2, 1950 . . . . . . 16 Memorandum by Assemblyman D. Mallory Stephens, reported in 1950 Legislative Annual . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 36 New York Jurisprudence, Second Edition, 36 N.Y. Jur. 2d Death § 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Port Agency Bill Berated As ‘Trick’, N.Y. TIMES, Mar. 25, 1950 . . . . . . . 14 Sponsor's Statement, R. S. 32:1-157 et seq., Sen. No. 183, Mar. 5, 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1 STATEMENT OF JURISDICTION This Court has jurisdiction to entertain this appeal by authority of C.P.L.R. § 5602(a). This action originated in the Supreme Court, County of New York. The Decision and Order of the Appellate Division, First Department, in reversing the IAS court’s orders, granting dismissal of plaintiff’s claims and vacating plaintiff’s default judgment, are final. The questions raised in this appeal are questions of law and are reviewable pursuant to C.P.L.R. § 5501(b). The questions raised have been preserved for this Court’s review, and were the subject of the underlying motion practice [A. 203-536], and of the Appellate Division’s May 28, 2013 Order reversing the judgment entered in Supreme Court, New York County on January 30, 2012 [A. 543]. Plaintiff sought leave to appeal upon direct application to this Court. Defendant noticed its appeal from the IAS court’s judgment by Notice of Appeal dated February 3, 2012 [A. 7]. Plaintiff served the Appellate Division’s May 28, 2013 Decision and Order with Notice of Entry upon defendant (via Federal Express overnight delivery) on July 2, 2013 [A. 549]. Plaintiff’s Motion for Leave to Appeal to the New York State Court of Appeals was timely filed on July 10, 2013. By Order issued September 12, 2013 [A. 541-42], this Court granted plaintiff leave to appeal. 2 STATEMENT OF QUESTIONS PRESENTED 1. In this case arising from decedent’s fatal mesothelioma caused in part by exposure to asbestos during the construction of the World Trade Center, where: • plaintiff and plaintiff’s decedent together during decedent’s lifetime served a valid notice of claim upon the Port Authority of New York and New Jersey pursuant to § 7107 of the Port Authority’s “suability statute” identifying decedent’s mesothelioma as well as the time and place of his exposure; • decedent subsequently died as a result of his injuries during the 60 day waiting period and plaintiff later sued the Port Authority as administratrix of decedent’s estate for wrongful death and to vindicate decedent’s personal injury claim as a survival claim; • and § 7108 of the “suability statute” expressly states that a notice of claim need only state “the items of damages or injuries claimed to have been sustained so far as then practicable,” did the First Department err when it failed to recognize as a matter of well-established New York common law that plaintiff’s reliance on the decedent’s pre-death notice of claim strictly adheres to the express 3 terms of the notice of claim requirements, and instead penalized plaintiff for a lack of “substantial compliance?” 2. Alternatively, where the Port Authority is a single bi-state entity that has waived its sovereign immunity through a single statutory text concurrently enacted in both New York and New Jersey, did the First Department err in failing to recognize that the suability statute’s express language renders it a substantial compliance provision, as the New Jersey courts have already determined? 3. Did the Appellate Division contravene New York’s public policy of not rewarding the persistent defaults of a litigant when it vacated plaintiff’s default judgment against the Port Authority and granted Port Authority’s motion to dismiss? 4 PRELIMINARY STATEMENT George Andrucki was one of the many tradesmen who helped to make the Port Authority’s original World Trade Center a reality. His reward for participating in this historic contribution to New York City’s skyline was an excruciating death approximately 40 years later from mesothelioma, an aggressive and incurable asbestos-related cancer caused in part from Port Authority’s negligent oversight of the World Trade Center construction site. After his diagnosis, Mr. and Mrs. Andrucki served a notice of claim on the Port Authority seeking to recover for the mesothelioma injury. The notice of claim provisions of the “suability statute” derive from a deliberate effort by both the New York and New Jersey legislatures during the late 1940’s and early 1950’s to open the Port Authority up to tort liability “to the same extent as a private corporation,” ending a decades long period in which the flawed drafting of the Port Authority’s original charter allowed it to act with “virtual autonomy” as a “sovereign super state.” See pp. 12-17, infra. The resulting suability statute, which waives the Port Authority’s sovereign immunity, asks claimants to provide Port Authority 60 days notice as a precondition to suit through service of a notice of claim which states the claimant’s injuries and damages “so far as then practicable.” 5 Unfortunately, in this case, Mr. Andrucki succumbed to his mesothelioma during the 60 day waiting period. Mrs. Andrucki, acting individually and as Mr. Andrucki’s estate representative, attempted to later commence suit against the Port Authority, relying on the notice of claim she filed along with her late husband prior to his death. In addition to being fully consistent with the suability statute’s “so far as then practicable” language, there is a longstanding common law principle in New York that supports this reliance which the trial court recognized, noting that the death is “sequelae” to the original notice of claim. This was not sufficient for the Port Authority however. Contrary to the spirit of the suability statute, Port Authority resorted to its original autonomous super state ethos and ceased cooperating with the jurists below and ceased all participation in the Andrucki action. After the Andrucki trial concluded without Port Authority’s participation, the trial court entered a default judgment and the Port Authority appealed to the First Department. The issues before the First Department were whether Mrs. Andrucki, as estate representative for her late husband, was entitled to rely on the prior notice of claim as has been allowed for decades under New York common law, and if so, whether the Port Authority should be held to account for its deliberate default in the action. 6 Under the express language of the Port Authority’s suability statute, a potential plaintiff’s notice of claim is required only to state “the items of damages or injuries claimed to have been sustained so far as then practicable.” See NY Ucons Laws §7108 (emphasis added). It is therefore possible to strictly comply with the express terms of the suability statute while still being unable to identify one’s injury and damages with finality. The First Department’s failure to grapple with this fact led it to abandon decades-old principles of New York law regarding the right of estate representatives to rely on a decedent’s notice of claim and instead to rule on the question of substantial compliance. Alternatively, plaintiff additionally posits for reasons addressed below that the First Department’s decision in this case, which purports merely to confirm an existing split between New York and New Jersey regarding interpretation of the statute, actually conflicts with what had been a coherent and uniform, albeit subtle, application of the doctrine of substantial compliance to the Port Authority’s suability statute across the case law of both New York and New Jersey. Thus, even having incorrectly assumed plaintiff’s notice of claim to suffer defects, the First Department still should not have ruled it insufficient to invoke the court’s jurisdiction over the Port Authority. 7 STATEMENT OF THE CASE I. Background of This Case This case stems from George Andrucki’s diagnosis in April of 2010 with mesothelioma, an incredibly painful and aggressive form of cancer caused by exposure to asbestos for which there is no life-saving treatment [A. 213]. Mr. Andrucki’s mesothelioma was caused, in part, by asbestos exposure he experienced while working on construction of the original World Trade Center in the 1970’s [A. 375-78]. Mr. Andrucki and his wife, Mary Andrucki, together served a notice of claim upon the Port Authority in October of 2010 as a condition precedent to later filing suit against the Port Authority pursuant to the “suability statute” [A. 86-88]. At no point has Port Authority disputed that at the time it was served, the Andruckis’ notice of claim satisfied all the requirements of the suability statute. Contemporaneously, the couple also filed a lawsuit against 16 other entities that contributed to Mr. Andrucki’s injury [A. 76-85]. The immediate commencement of that action was critical, because Mr. Andrucki’s prognosis was grave and his testimony needed to be preserved through early access to discovery. Significantly, Mr. Andrucki died in December of 2010, less than two months after he commenced his action 8 and just weeks after his deposition was completed [A. 210]. Although the Port Authority was not a party to the action at that time, it attended Mr. Andrucki’s deposition and cross-examined him with regard to his World Trade Center exposure [A. 487-94]. Subsequently, after she had been appointed as the administratrix of her husband’s estate and after the 60 day waiting period had ended, Mrs. Andrucki commenced an action against Port Authority in January of 2011 through an amended summons and complaint which asserted survival and wrongful death claims [A. 89-99]. Port Authority took the position that the amended complaint failed to commence an action against it, because the notice of claim served in October of 2010 purportedly did not give notice of either the survival or wrongful death claims [A. 216]. Thereafter, Port Authority ceased any participation in the Andrucki action. 1 During the period from January 2011 to May 2011, as part of standard NYCAL (New York City Asbestos Litigation) procedure, the Andrucki action 1 Unfortunately, as observed by the First Department below, as a result of an administrative error on the part of plaintiff’s counsel the Port Authority was included among defendants sued on the original complaint. Plaintiffs have acknowledged since the outset that the original complaint was a nullity against the Port Authority due to being premature under the suability statute. The issue on this appeal, as addressed by the First Department, is whether Mrs. Andrucki was entitled as estate representative to rely on the original notice of claim when she later commenced an action against the Port Authority at the appropriate time through an amended summons and complaint. Indeed, the issue on appeal would be the same with or without the administrative error as Mr. Andrucki died during the 60 day waiting period and therefore could not have timely commenced an action against the Port Authority prior to his death. 9 was transferred for trial from Administrative Judge Sherry Klein Heitler to Justice Martin Shulman as part of the April 2011 In Extremis group, was joined for trial with several other mesothelioma actions, and was calendared for trial commencing on July 11, 2011 [A. 20]. From May to July of 2011, additional joinder practice was considered as well as pre-trial in limine motions [A. 20-21]. At no point during this entire time did Port Authority seek to assert its alleged defense. In fact, Port Authority did not even advise plaintiff’s counsel that it took issue with commencement under the supplemental summons and amended complaint until May 23, 2011 [A. 216]. By this time the statute of limitation on Mr. Andrucki’s pain and suffering claim had expired under Unconsolidated Laws § 7107. Later, as a deliberate and strategic decision, Port Authority moved for dismissal in lieu of attending trial [A. 38]. It waited to do so until the first day of jury selection [A. 72]. Port Authority’s motion to dismiss remained pending through the course of the Andrucki trial, and was not decided until after Port Authority’s codefendants settled and the trial halted due to the Port Authority’s absence [A. 23]. Plaintiff moved for a default judgment based on Port Authority’s absence from trial. Ultimately, Justice Heitler, the administrative judge for NYCAL, denied Port Authority’s motion to dismiss, finding that the amended 10 complaint was a valid means of commencing an action against it [A. 69-75]. Port Authority’s jurisdictional argument having been resolved, Plaintiff’s motion for a default was subsequently granted by the trial court [A. 18-68] and a judgment entered for $2.5 million [A. 9-17] pursuant to C.P.L.R. § 3215(g)(1), which allows the trial court to assess damages without further inquest when a party who has appeared fails to attend a duly calendared trial. Port Authority appealed from the final judgment [A. 7-8]. II. The First Department’s Ruling The threshold issue before the First Department – the only issue it reached substantively - was whether Mrs. Andrucki was entitled, subsequent to the death of her husband, to rely on the notice of claim she and her husband filed during his lifetime in order to satisfy the condition precedent to suit against the Port Authority contained in the Port Authority’s suability statute [A. 546-47]. On that question, the First Department erred twice. First, the court discounted a strain of New York case law dating back to the 1945 Holmes decision of the Second Department permitting an estate representative the ability to rely on her decedent’s original notice of claim where the decedent died of the injuries previously noticed. In doing so, it misconstrued these cases as being predicated on the doctrine of substantial 11 compliance and as relying upon the amendment provisions of the General Municipal law when in fact this line of cases originally arose relative to New York City’s Administrative Code, which like the suability statute has no amendment provision. [A. 546-47]. The First Department should have concluded that there was no defect in Mrs. Andrucki’s notice of claim, because it provided all of the notice called for by the text of the suability statute under even the strictest of readings. Second, even assuming arguendo that there was a defect in Mrs. Andrucki’s notice of claim, once the First Department embarked upon a substantial compliance analysis – an analysis that was not even necessary but for the misconstruction of Holmes – it further erred in categorically rejecting any application of a substantial compliance doctrine in Port Authority cases. Under either analysis, the First Department’s error stems primarily from wrongly ignoring the explicit language of the suability statute which provides that a claimant is only required to state “the items of damages or injuries claimed to have been sustained so far as then practicable.” See NY Ucons Laws §7108 (emphasis added). That is, regardless of whether the Holmes line of cases are a manifestation of substantial compliance or not, 12 the result reached by the First Department cannot be squared with the statute’s “so far as then practicable” language. In light of these errors, the First Department’s ancillary orders vacating plaintiff’s default judgment and reversing the trial court’s decisions relative to dismissal and default, issues which were never addressed substantively, must also be reviewed. 2 III. Background of the Suability Statute The New York legislature passed the Port Authority suability statute in 1950. See N.Y. Unconsol. Law § 7101. Prior to the suability statute’s enactment, the Port Authority enjoyed a form of bi-state sovereign immunity and thus could not be sued without its consent. See Memorandum by Assemblyman D. Mallory Stephens, reported in 1950 Legislative Annual, p. 203-04 (“Since the Port Authority is the direct agent and instrumentality of both states, the courts concluded that in the absence 2 It is additionally worth noting that the First Department overlooked or was otherwise silent as to the distinction between the accrual of the plaintiffs’ personal injury claims and wrongful death claims. In the decision appealed from, the First Department noted that plaintiff was still entitled to seek permission to file a late notice of claim based on the claim having accrued in November of 2010. That is true as to the wrongful death claim, but not as to plaintiff’s pain and suffering or loss of consortium claims which began accruing in April of 2010. Thus, by the time the First Department handed down its decision, the accrual of these claims was beyond §7108’s outside limit of 3 years for the grant of permission to file a late notice of claim. These claims, which cannot be asserted afresh, constitute the majority of plaintiff’s judgment. The First Department’s suggestion that plaintiff return to the trial court seeking permission to file a late notice of claim is therefore a half measure only. The instant appeal seeks to preserve the entirety of plaintiff’s judgment. 13 of an express consent by the states to suit against the Port Authority, the Port Authority shared the governmental immunity of the states themselves.”). In passing the statute, the legislature responded to a groundswell of support for broadening the Port Authority’s liability. Lawmakers, citizens, and the business community had castigated the Port Authority’s abuse of its autonomy and its status as an invulnerable “super state.” See, e.g., Douglas Dales, Inquiry Demanded On Port Authority; Tolls, Salaries Hit, N.Y. TIMES, Jan. 11, 1950, at 1, 46 (“Practices of the Port of New York authority were denounced vigorously here today . . . . The attacks on the agency, made by both Republicans and Democrats, centered on the general allegation that it enjoyed virtual autonomy . . . . Senator John M. Braisted Jr. and Assemblyman Edward V. Curry . . . attacked the Port Authority as a ‘sovereign super state’ . . . . Assemblyman Lashin, calling the authority ‘a creature removed from all local or state supervision,’ submitted four complaints against the bi-state body . . . . These were that the Authority . . . is not suable in the courts.”); Dewey Aid Asked Against Port Body, N.Y. TIMES, Jan. 12, 1949 (“The New York Board of Trade announced yesterday that it had asked Governor Dewey and Gov. Alfred E. Driscoll of New Jersey to favor legislation making the Port of New York Authority suable and 14 capable of bringing suit . . . . The letters to both Governors ask their thoughtful consideration of the board’s proposal ‘in the sincere belief that the public’s interests in the future will be better served and the legitimate interests of the Port of New York Authority will be fully protected by amending the Authority’s charter and incorporating in it the power to sue and be sued.”); Port Agency Bill Berated As ‘Trick’, N.Y. TIMES, Mar. 25, 1950 (“The [Newark City] Commissioner [Meyer C. Ellenstein] then said: ‘The Port Authority, having entered the field of private business and industry, and already having unfair competitive advantages . . . to an extent that is destructive of the welfare of the people . . . should be subject to suits for its misdeeds and defaults the same as everybody else”). In response, the New York and New Jersey legislatures simultaneously introduced bills to provide a means of holding the Port Authority accountable. See, e.g., Douglas Dales, Effort to Strip Port Authority of Its Legal Immunity From Suit Is Initiated, N.Y. TIMES, Feb. 22, 1950 (“Senator MacNeil Mitchell of Manhattan and Assemblyman D. Mallory Stephens of Brewster introduced companion bills today to make the Port of New York Authority suable. The measure aims to overcome one of the chief troubles cited by the legislators in demanding an investigation of the Port Authority”); Dispute Continues Over Jersey Bill, N.Y. Times, 15 Apr. 2, 1950 (“Mr. Tobin declared that the proposed bill would make the authority completely suable from the time of enactment in negligence, contract, every form of injury to person, property or reputation”). The suability statute’s legislative history shows the New York and New Jersey legislatures expressly intended that there be no daylight whatsoever between their two bills – not in terms of their language or their effects. Instead, the legislatures’ clear aim was to create a completely unified framework for the Port Authority’s waiver of immunity. To maintain the integrity of the bi-state scheme, it is essential that New York courts give substantial weight to New Jersey’s jurisprudence on the statute. See, e.g. Borough of Moonachie v. Port of New York Authority, 38 N.J. 414, 425, 185 A.2d 207, 213 (1962)(“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.”). Thus, the New York suability statute – appropriately titled “AN ACT Agreeing with the state of New Jersey with respect to suits against the Port of New York Authority,” Feb. 21, 1950, Bill Jacket, No. 2866, Ch. 301 – became effective only upon New Jersey’s passage of an identical Act. N.Y. Unconsol. Law § 7112 (“This act shall take effect upon the enactment into 16 law by the state of New Jersey of legislation having an identical effect with the provisions of this act . . . .” (emphasis added)). The legislatures recognized that the suability statute would only work if the two States acted in concert, enacting the exact same provisions with the exact same effect. See, e.g., Sponsor's Statement, R. S. 32:1-157 et seq., Sen. No. 183, Mar. 5, 1951, at 5 (“The purpose of this bill is to provide for an agreement with the State of New York consenting to suits, actions or proceedings against the Port of New York Authority.” (emphasis added)); Douglas Dales, Effort to Strip Port Authority of Its Legal Immunity From Suit Is Initiated, N.Y. TIMES, Feb. 22, 1950 (“Senator MacNeil Mitchell of Manhattan and Assemblyman D. Mallory Stephens of Brewster introduced companion bills today to make the Port of New York Authority suable. The measure aims to overcome one of the chief troubles cited by the legislators in demanding an investigation of the Port Authority. Before the bill can become operative an identical measure must be approved by the New Jersey Legislature, which set up the authority jointly with New York State.”); Governor Extends Youth Board’s Life, N.Y. TIMES, Apr. 2, 1950 (“Governor Dewey also signed a bill making the New York Port Authority liable to suit in certain cases, provided New Jersey enacts a law having an identical effect . . . . The measure was sponsored by the Port Authority in both the New Jersey and 17 New York Legislatures. It carried out part of the compromise that Governor Dewey and New Jersey’s Governor Alfred E. Driscoll worked out last August”). 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.” Memorandum by Assemblyman D. Mallory Stephens, reported in 1950 Legislative Annual, p. 204. 18 ARGUMENT I. THE FIRST DEPARTMENT’S RULING CONFLICTS WITH LONG-SETTLED LAW IN NEW YORK THAT, FOR NOTICE OF CLAIM PURPOSES, THE WRONGFUL DEATH ACTION IS A MERE CONTINUATION OF THE MAIN ACTION PREVIOUSLY NOTICED Throughout the history of this case, it has remained undisputed that Mr. and Mrs. Andrucki served a valid notice of claim upon Port Authority on October 4, 2010, alleging Port Authority to be liable for Mr. Anducki’s mesothelioma [A. 86-88]. Even a quick glance at the document confirms that it sets forth all of the required information, and at no point has Port Authority ever suggested that this notice of claim was inaccurate or insufficient at the time it was served. Mr. Andrucki later died on November 27, 2010, before any suit was commenced against the Port Authority [A. 210]. Port Authority therefore contended, contrary to New York law, that because the Andruckis’ notice of claim spoke only to Mr. Andrucki’s common law negligence claim for pain and suffering, and not to the as of yet un-accrued statutory survival and wrongful death claims, it did not satisfy the condition precedent to the actual suit filed by Mrs. Andrucki. What necessarily follows, Port Authority argued, is that the court was deprived of subject matter jurisdiction by virtue of plaintiff’s alleged failure to comply with sections 7107 and 7108 of 19 the “suability statute” by serving a notice of claim that substantively matched the claims prosecuted through the subsequent suit. In considering Port Authority’s opposition to plaintiff’s motion for a default judgment, the trial court, unlike the First Department, correctly rejected this contention, noting that the wrongful death claim is “sequelae,” and stating that “the case law is pretty clear that you don’t need a separate notice of claim for wrongful death” [A. 56]. A. New York Law Prescribes that a Second Post-Death Notice of Claim Is Not Required Where the Decedent Serves a Valid Notice During His Lifetime It is well established under New York law that where “a proper notice of claim was served by the [decedent] during [his] lifetime, it is not necessary for the administrator to serve another notice when a claim is made for wrongful death.” Holmes v. City of New York, 269 A.D. 95, 98 (2nd Dept. 1945)(aff’d 295 N.Y. 615 (1945)); see also Mingone v. State of New York, 100 A.D.2d 897, 898 (2nd Dept. 1984)(holding 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.”). 20 In Holmes v. City of New York, a case of first impression for New York state courts, the Second Department acknowledged that “technically the wrongful death statute does create a new cause of action of a distinct nature” but further recognized that “the statute continues for the benefit of the wife, husband, etc., a right of action which, at the common law, would have terminated upon the death of the injured person. . .” Holmes, 269 A.D. at 98. “In that sense, therefore,” the court continued . . . “it would seem that since a proper notice of claim was served by the intestate during her lifetime, it is not necessary for the administrator to serve another notice when a claim is made for wrongful death.” Id. The same reasoning a fortiori applies in the instant case. Whereas the wrongful death action is technically a new cause of action, the survival claim is quite literally the claim stated in the notice of claim; i.e. under E.P.T.L. § 11-3.2, Mr. Andrucki’s pain and suffering claim is not lost by his death. Indeed, the Holmes court noted that “the object of the revival statute and the wrongful death statute was to give and preserve to the parties damaged a complete remedy and opportunity to recover the complete loss sustained.” Holmes, 269 A.D. at 98. Thus E.P.T.L. § 11-3.2 preserved Mr. Andrucki’s original claim for the benefit of Mrs. Andrucki, and E.P.T.L. § 11-3.3 allowed that claim to be prosecuted in the same action 21 as the wrongful death claim. And, pursuant to New York Unconsolidated Laws §7108, plaintiff stated the claims in the original notice of claim “so far as then practicable.” Therefore, the First Department should have recognized that the valid notice of claim filed before Mr. Andrucki’s death was sufficient to give notice of both the wrongful death and survival actions later commenced by Mrs. Andrucki. Significantly, courts and commentators have explicitly applied the Holmes reasoning to actions – like the present case– in which the decedent died before any personal injury action was commenced. See, e.g. Mingone v. State of New York, 100 A.D.2d 897 (2nd Dept. 1984)(citing to Holmes and deeming a notice of claim valid for a wrongful death cause of action where the notice was filed during decedent’s lifetime but no suit commenced until after her death.); Sharkey v. City of New York, 80 N.Y.S.2d 284 (Sup. Ct., Kings Cty., 1948)(same); and New York Jurisprudence, Second Edition, 36 N.Y.Jur.2d Death § 219 (“A separate or additional notice of claim or intention to bring a wrongful death action is not required if the decedent, having survived for a time the injury which eventually caused death, served a timely notice before he or she died, and after death a personal representative brought or continued an action for the 22 damages suffered by the decedent and also instituted an action for wrongful death.” (emphasis added)).3 B. The Holmes Line of Cases Conflicts with the First Department’s Ruling Because They Speak to the Nature of the Notice Required and Are Not Based on Substantial Compliance Despite noting the above rule, the Appellate Division rejected its applicability to the instant case, because it construed Holmes and its progeny as depending on the doctrine of substantial compliance. Citing to Mingone v. State of New York, 100 A.D.2d 897 (2nd Dept. 1984), the First Department wrote that “as plaintiffs correctly note, courts in this state have held, in considering notices of claim under General Municipal Law § 50-e, that notice of injury placed a municipality on notice of plaintiff’s subsequent death from that same injury. However, these cases have no application to the Port Authority’s suability statute. General Municipal Law 3 In the courts below, Port Authority cited to cases such as Billman v. City of Port Jervis, 23 Misc.3d 1127(A) (Sup. Ct., Orange Cty., 2009), and Moore v. Melesky, 14 A.D.3d 757 (3rd Dept. 2005), for the proposition that courts are helpless to cure jurisdictional defects in notices of claim. These cases are not contrary to the Holmes line of cases since they dealt with a completely different type of factual scenario wherein the claimant’s notice of claim was defective from the outset. Here, the situation involves a notice of claim allegedly made moot by the claimant’s subsequent death from the very injuries identified in the notice of claim. Port Authority additionally cited to a line of cases including Yoo v. New York City Health & Hosps. Corp., 239 A.D.2d 267 (1st Dept. 1997), Wieder v. New York City Health & Hosps. Corp., 183 A.D.2d 677 (1st Dept. 1992), and Mack v. City of New York, 265 A.D.2d 308 (2nd Dept. 1999), to stress that wrongful death and pain and suffering claims are two distinct claims. These cases, which deal with statute of limitations concerns not present in the instant case, are likewise inapposite. Significantly, none of these cases, nor any of their reasoning, became a basis for the First Department’s decision in this case. 23 §50-e contains a ‘substantial compliance’ provision, permitting courts to consider whether a plaintiff has substantially complied with the statute’s terms” [A. 546-47]. Although some subsequent decisions in the Holmes line, such as Scheel v. City of Syracuse, 97 A.D.2d 978 (4th Dept. 1983), do make reference to General Municipal Law § 50-e, it is error to conclude that the rule set forth in Holmes owes its existence to, or is in any way dependent upon, the amendment provisions contained in that section of the municipal law. Indeed, Holmes, which was decided in 1945, stems from a 1944 trial court opinion which predates the enactment of Section 50-e of the General Municipal Law and was, in fact, decided relative to the Administrative Code for the City of New York, which, like the Port Authority suability statute, has no amendment provision. See Holmes, 269 A.D. at 96 (citing the notice of claim provisions in “section 394a-1.0 of the Administrative Code”). 4 As with the suability statute, New York City’s Administrative Code in present form requires potential plaintiffs to submit a notice of claim setting forth the time and place of injury and a verified statement detailing the 4 Indeed, it is worth noting, as discussed in greater detail in Point II, infra, that the sponsor’s memorandum in support of the enactment of the “suability statute” compares the law to both the General Municipal Law and the New York Administrative code. 24 injuries or damages claimed. See NYC ADC § 7-201(a). Unlike the suability statute, the administrative code is even stricter insofar as it does not provide any mechanism for a late notice of claim and does not contain any language akin to the suability statute’s “so far as then practicable” language. Id. The notion then that the Holmes line of cases depends on the more forgiving terms of the general municipal law is completely unsupportable. Even Scheel, decided under the General Municipal Law, is very clear in stating that “since 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. It would appear that the only reason the Scheel court went on to reference §50-e’s amendment provision is because that was the posture of that particular case. The plaintiff had requested, and the trial court granted, leave to amend the notice of claim. That is, Scheel held that granting leave to amend was not an abuse of discretion precisely because no amendment was even necessary. Id. Moreover, Mingone, the very case cited by the First Department in support of its analysis in this case, bases its decision not on any reference to the “substantial compliance” provisions of §50-e, but rather on an analogy to the relation back doctrine as set forth in C.P.L.R. § 203. 100 A.D.2d at 898. Drawing a parallel between a notice of claim and an “original 25 pleading,” the Mingone court reasoned that “by service of the original pleadings [the defendant] was put fully on notice as to what it was claimed [it] had done or omitted or both for which it was then and is now asserted that [it] is liable. The injured person’s death is simply an additional consequence of the defendant’s conduct for which [it] may be held responsible as surely would be true in more familiar instances of additionally discovered elements of damages.” Id. at 998-99 (quoting Caffaro v. Trayna, 35 N.Y.2d 245, 252 (1974)). Thus, as reasoned by the Mingone court, the issue is not one of mere substantial compliance. Rather, the Mingone court recognized that the notice of claim served during the decedent’s lifetime put the defendant “fully on notice.” Id. C. The Holmes Cases Are in Harmony with the Requirements of the Suability Statute The question then is not whether a decedent’s notice of claim for personal injuries “substantially complies” with the notice of claim requirements. The issue to be resolved in light of cases like Holmes and Mingone is the nature of the notice demanded by the suability statute in the first place. On that question, the Holmes reasoning (which would have been known to the suability statute’s drafters) fully comports with the actual language of the suability statute, which requires only that a claimant 26 state his items of damages or injuries “so far as then practicable.” Unconsol. Laws § 7108; see also Shea v. Incorporated Village of Head of the Harbor, 180 A.D.2d 675, 677 (2nd Dept. 1992)(“inasmuch as the plaintiff's obligation to specify injuries in the notice of claim extends only ‘so far as [is] practicable’ when the notice is served, it was error under the circumstances for the Supreme Court to dismiss the entire action against the Village because of the alleged deficiencies in the notice of claim.”) The suability statute’s “so far as then practicable” language is not easily ignored. In fact, this particular language is shared with the General Municipal Law’s notice of claim provision from which the First Department wrongly attempted to draw a contrast. See Gen. Mun. Law § 50-e(2). And, indeed, it is generally understood that notices of claim are not themselves pleadings and do not “require that a claimant state a precise cause of action in haec verba.” DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698 (2nd Dept. 1992). For example, in DaSilva v. C & E Ventures, Inc., 83 A.D.3d 551 (1st Dept. 2011), the First Department permitted a plaintiff to serve a supplemental bill of particulars alleging for the first time after the close of discovery that he was injured in New York as well as New Jersey. Port Authority had successfully moved for summary judgment on the basis of 27 New Jersey law, and the question of plaintiff’s injury being subject to New York law was therefore dispositive. Id. at 551-52. Port Authority argued that plaintiff should not be allowed to supplement his bill of particulars to include claims based on New York law, raising the limitations of the prior notice of claim. Id. The DaSilva Court ruled that the prior notice of claim satisfied the time and content requirements of Unconsolidated Law § 7108, and granted plaintiff leave to supplement his bill of particulars for the purpose of “amplifying and clarifying allegations based on additional factors uncovered during discovery.” Id. at 552. The present situation is no different. If the DaSilva plaintiff was able to clarify his original claim to encompass a completely different state’s substantive law on a case-dispositive issue based on nothing more than the course of discovery, then there is no reason why the change in Mr. Andrucki’s living status from the time of the notice of claim to the time of the commencement of the action should have been a barrier to the prosecution of a suit against Port Authority, particularly since section 7108 of the unconsolidated law only requires identification of damages “so far as then practicable.” See, e.g. Winbush v. City of Mount Vernon, 308 N.Y. 327, 334 (1954)(“While no one except an administrator or executor may 28 bring a death action, there is no reason, in statute or in reason, why a person who is one of the next of kin to be benefited by a death action, may not file a notice of claim, which is not a pleading in a lawsuit, but merely a notice of injury and intention to make claim therefor.”(emphasis added)); Holmes, 269 A.D. at 99 (stating that “the fact that because of subsequent events two classes of persons are, in law, entitled to recover their respective damages flowing from the same wrongful act should be of no concern to the appellant.”). Yet, contrary to its obligations, the First Department’s decision in this case completely reads the phrase “so far as then practicable” out of the suability statute and demands a precision of notice that is simply not called for by either the express terms of the statute or by New York’s common law through cases such as Holmes and Mingone. See, e.g. Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 120 (2012)(“In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature's intention. As we have repeatedly stated, the text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning.’”(internal citations omitted)). Contrary to the First Department’s conclusion in this 29 case, the “so far as then practicable language” of the suability statute is an explicit statement – consistent with Holmes and Mingone - that once a valid notice of claim is served and the waiver of sovereign immunity triggered, jurisdiction is not lost by the happenstance that the claimant was not able to foresee the entirety of damages which may develop. By misconstruing the Holmes line of cases as a manifestation of “substantial compliance” rather than a principle of law regarding the nature of the notice owed through the notice of claim process, the First Department begged the question before it. The Appellate Division presumed the presence of a defect in Mrs. Andrucki’s notice of claim and on that basis ruled on the applicability of substantial compliance when in reality it was the antecedent question that it was tasked with answering (i.e. whether there was any defect in the notice of claim or whether Mr. and Mrs. Andrucki had, in fact, identified their injuries and damages “so far as then practicable” at the time they served their notice of claim). Under well- established New York law, the First Department should have concluded that Mr. and Mrs. Andrucki’s original notice of claim was sufficient to satisfy even the strictest standard of compliance with the Port Authority’s suability statute based on the actual language of the statute and therefore should have upheld the denial of its motion to dismiss. 30 POINT II THE FIRST DEPARTMENT ERRED IN CONCLUDING THAT STRICT CONSTRUCTION OF THE SUABILITY STATUTE SOMEHOW NEGATED THE “SO FAR AS THEN PRACTICABLE” LANGUAGE CHARACTERIZING THE STATUTE’S NOTICE OF CLAIM REQUIREMENTS Alternatively, even if one accepted the First Department’s conclusion that the reasoning in Holmes and Mingone stems from the doctrine of substantial compliance (meaning that Mrs. Andrucki’s notice of claim did have a flaw that needed forgiveness notwithstanding the fact that the Holmes and Mingone courts would forgive it), that still does not lead to the conclusion that Mrs. Andrucki’s notice of claim was invalid, because one way or another the statute’s “so far as then practicable” language needs to be addressed. The First Department’s ruling in this case wrongly leaves this explicit statutory phrase without any function or purpose. Contrary to the First Department’s conclusion in this case, the Port Authority’s suability statute does not actually call for strict “compliance” in all regards as certain lower court decisions have paraphrased key precedents to require. Rather, New York case law calls for strict “construction” of the suability statute. Thus, in light of the statute’s “so far as then practicable” language, this should have led the First Department to 31 accept the applicability of the doctrine of substantial compliance to the suability statute with regard to the content of notices of claim even while New York law simultaneously considers defects as to timing of the notice of claim to be fatal jurisdictional defects. There are, of course, a significant number of cases among New York’s lower and intermediate courts stating that the Port Authority’s suability statute demands strict construction and therefore mere “substantial compliance” will not suffice. See, e.g. Luciano v. Fanberg Realty Co., 102 A.D.2d 94 (1st Dept. 1984); Port Auth. of N.Y. & N.J. v. Barry, 15 Misc.3d 26, 38 (App Term, 2nd Dept. 2007); see also Ofulue v. Port Auth. of N.Y. & N.J., 307 A.D.2d 258 (2nd Dept. 2003); Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d 520 (1st Dept. 1996). Strikingly, however, the First Department also points out that there is an equally long list of New Jersey cases seeming to state the opposite. See, e.g. Zamel v. Port of New York Auth., 56 N.J. 1, 264 A.2d 201 (1970); Atlantic Aviation Corp. v. Port of New York Auth., 66 N.J. Super 15, 168 A.2d 262 (1961); Port Auth. of N.Y. & N.J. v. Airport Auto Services, Inc., 396 N.J. Super 427, 934 A.2d 665 (2007). By juxtaposing these two lines of cases, the First Department is implicitly asking, yet declining to address, why the apparent conflict exists. 32 Some courts have attempted to explain the discrepancy as a matter of liberal interpretation of sovereign immunity waivers in New Jersey versus a narrower reading in New York. See, e.g. Privat Air, S.A. v. Port Auth. of N.Y. & N.J., 2007 WL 2089285 (E.D.N.Y. 2007). For the reasons discussed below, however, this distinction is of no moment and the fact of the matter is that the above referenced lines of cases (most prominently the Zamel case in New Jersey and the Luciano case in New York) are not at all in conflict when closely examined, but rather speak to different aspects of one unified rule shared by both New York and New Jersey. See, e.g. Port Authority of New York and New Jersey v. Airport Auto Services, 396 N.J. Super 427, 934 A.2d 665 (2007)(finding New York’s Barry precedent, supra, to be persuasive authority on certain grounds yet distinguishing New Jersey’s own Zamel precedent). Looking at the development of the case law in both New York and New Jersey, it is apparent that the uniform rule across both states is that the timing requirements of the suability statute – both as to the statute of limitation and the notice of claim requirement – require strict compliance, because there is no statutory language that would allow for any imprecision relative to timing (i.e. the conditions under which permission to file a late notice of claim are explicit and very limited). The content of the notice of 33 claim, however, for which the drafters of the suability statute deliberately included “so far as then practicable” language, requires only substantial compliance precisely because the phrase “so far as then practicable” itself sets forth a substantial compliance standard. To the extent some later New York decisions, namely the Barry decision discussed infra and the decision appealed from, appear to depart from this rule, they are in need of correcting. There is a long history to the enactment of the suability statute and subsequent case law that demands it. A. New Jersey Courts Were the First to Assess the Sufficiency of a Notice of Claim Served on the Port Authority and Correctly Applied the Doctrine of Substantial Compliance As a Basic Matter of Statutory Interpretation New Jersey courts were the first to address questions regarding the sufficiency of a notice of claim under the new suability statute. Within a decade of the 1953 enactment of the suability statute, New Jersey courts determined that it was “apparent that the legislative intent of section 164 [i.e. the notice of claim provision of the suability statute] was merely a directive as to the kind of notice which would fairly apprise the Port Authority of the existence and nature of a claim to be asserted against it, so that the Port Authority should have adequate time for investigation and, consequently, a reasonable opportunity to prepare a defense.” Atlantic 34 Aviation Corp. v. Port of New York Authority, 66 N.J. Super. 15, 168 A.2d 262, (Sup. Ct., Law Div. 1961). In Atlantic Aviation Corp., the claimant’s airplane was damaged at Newark airport. Claimant engaged in a series of correspondence with the Port Authority which set forth the circumstances of the claim and triggered an investigation by the Port Authority. Port Authority denied its liability for the damage and plaintiff ultimately served an untimely notice of claim before commencing suit. Port Authority moved to dismiss based on a lack of jurisdiction due to failure to comply with the notice of claim requirement. Plaintiff argued to the court that his letters constituted substantial compliance with the notice of claim provisions, and the court agreed, noting that the letters despite their form contained all of the information required in a notice of claim and timely put the Port Authority on notice of the claim. Id. Nine years later, the New Jersey Supreme Court adopted the same reasoning in Zamel v. Port of New York Auth., 56 N.J. 1, 264 A.2d 201 (1970). As in the Atlantic Aviation case, the Zamel plaintiff timely put the Port Authority on notice of the claim through correspondence, but failed to ever submit a verified notice of claim. The New Jersey Supreme Court noted that the Atlantic Aviation decision was the only case up to that time 35 addressing the issue in either New York or New Jersey, and ultimately agreed with its reasoning, concluding that: “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 claim.” Id. at 6. Significantly, both Atlantic Aviation and Zamel find support for their conclusions in the legislative history and text of the Port Authority’s suability statute. Indeed, the suability statute stemmed out of a concerted effort to expand the Port Authority’s exposure to suits. As described above, prior to the enactment of the suability statute, case law indicated that the Port Authority remained immune to suit. See, pp. 12-17, supra. The suability statute was designed to correct that by making Port Authority liable in tort to “the same extent as though it were a private corporation.” See N.Y. Unconsol. Law § 7106 (“Although 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.”). This framing of the 36 suability statute as creating proprietary liability on the part of the Port Authority evinces a clear intent that the suability statute be broadly construed to effectuate a remedial purpose. Cf. Miller v. City of New York, 187 Misc. 926 (City Ct. Kings Cty.)(stating with regard to the General Municipal law that “restrictions imposed by the Statute upon these suits against the Public Corporation for acts arising out of proprietory, 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 proprietory functions”). In that vein it is worth noting that the suability statute has its origin in a public outcry over the Port Authority’s “super state” status and “virtual autonomy” See pp. 12-17, supra. 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. See Memorandum by Assemblyman D. Mallory Stephens, reported in 1950 Legislative Annual, p. 204. 37 Thus, it should be viewed as highly significant that, as previously discussed, the text of the suability statute shares its “so far as then practicable” language with the General Municipal law.5 Like the instant case, the Atlantic Aviation and Zamel cases dealt with situations where the plaintiff served timely notices of claim that were flawed with regard to their form or content.6 In the decision appealed from, the First Department implicitly acknowledged that these cases were directly on point. The court declined to follow them, however, on the basis of what it perceived to be a contrary strain of New York case law. As examined below, the distinction between New York and New Jersey law on this point is actually illusory. Therefore, the First Department should have followed the lead set by the Atlantic Aviation and Zamel cases which in addition to being well reasoned and fully consistent with New York law are rooted in a more contemporaneous understanding of the legislative history of the suability statute. See, e.g. Borough of Moonachie v. Port of New York Authority, 38 N.J. 414, 425, 185 A.2d 207, 213 (1962)(“Since the Authority is an instrumentality of New York and New Jersey, it is eminently 5 To the extent one may point to the suability statute’s lack of any amendment provision similar to paragraph 6 of the general municipal law, see fn. 9, infra. This distinction is of no moment relative to the issue of substantial compliance. 6 In fact, as discussed in point I, supra, plaintiff does not believe her notice of claim was flawed as to its content, but assumes arguendo for purposes of discussing the doctrine of substantial compliance that it was. 38 desirable, of course, that the path of judicial decision in the courts of the two States be a common one.”). Indeed, as described below, faithful adherence to New York’s own First Department precedent in Luciano requires it. B. Contrary to the First Department’s Understanding, New York Appellate Courts Have Not Developed a Strain of Case Law in Conflict with New Jersey On the Question of Substantial Compliance Under the Port Authority’s Suability Statute It wasn’t until over a decade after the Zamel decision, by then some thirty years following the enactment of the Port Authority’s suability statute, that New York courts first addressed the sufficiency of a notice of claim under the suability statute. In Luciano v. Fanberg Realty Co., 102 A.D.2d 94 (1st Dept. 1984), the First Department began New York’s development of a seemingly contrary strain of case law. In ruling that strict construction of any statutory waiver of sovereign immunity was always necessary, it appeared as though the Luciano court rejected the application of “substantial compliance” relative to the Port Authority’s notice of claim provisions. Indeed, the Luciano decision concludes by noting that “the Court of Appeals has reaffirmed the principle that in the absence of specific statutory authority, courts cannot waive 39 jurisdictional defects in the service of a notice of claim.” Id. at 98 (citing Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539 (1983)). Critically, however, unlike the Zamel court, the Luciano court was primarily addressing the timing of the notice of claim and not its form or substance. 102 A.D.2d at 94 (noting that plaintiff sought permission to file a late notice of claim nunc pro tunc). Indeed, the Zamel court explicitly noted that the question of timeliness was not an issue in that case. 56 N.J.at 4-5, 264 A.2d at 202-03. Unlike Zamel, the holding in Luciano flowed directly from the fact that the Port Authority’s suability statute allows for the late filing of notices of claim only under certain explicit circumstances.7 Id. at 97. To the extent the Luciano court was insisting on strict construction, these are the provisions, relative to timing and when late notices of claim are permissible, that it was strictly construing. In this regard, Luciano’s reliance on Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539 (1983) is highly significant. The Parochial Bus System decision makes the distinction between time and content requirements clear, noting that the 7 To wit, the suability statute allows for the filing of a late notice of claim only “[w]here 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.” Uncons Laws § 7108. 40 doctrine of substantial compliance applied in the context of the notice of claim provision to the Education Law, but holding that the failure to timely serve a notice on the correct entity was a fatal jurisdictional defect. Indeed, the Luciano court does separately address the suability statute’s requirements regarding form and content, including its “so far as then practicable” language, Id. at 98-99, and on that point the Luciano and Zamel holdings are not in conflict. As a secondary argument, the Luciano plaintiff contended that even in the absence of any notice of claim served on her own behalf, the statutory notice of claim requirements were satisfied by other parties who had fully complied with the suability statute and had served notices of claim for the same occurrence. The court held that the argument was “flawed since those notices fail to comply with the most basic element of the notice of claim, that is, to identify the claimant and apprise the Port Authority as to the type and extent of damages claimed ‘so far as then practicable.’” Id. In other words, the Court held that the Luciano plaintiff could not co-opt those other notices, because as to her and her claims, those notices would not even satisfy substantial compliance. Such a holding is fully consistent with the holding in Zamel. Indeed, the Luciano court specifically distinguished Zamel based not on divergent views of sovereign immunity, but on the facts, stating that “completely 41 distinguishable is Zamel v. Port of N.Y. Auth. There, the court held that the notice of claim statute had been sufficiently met by two timely attorney’s letters which contained substantially all of the notice of claim requirements. Here, plaintiff admittedly had not complied with any of the statutory requirements.” Id. at fn. 2 (internal citations omitted). Importantly then, Luciano does not ever reject the Zamel court’s reading of the text and legislative history of the suability statute. And conversely, New Jersey courts, like New York courts, recognize that the suability statute sets forth a jurisdictional prerequisite that requires strict construction. See, e.g. Mathews v. Port of New York Authority, 163 N.J.Super 83, 85, 394 A.2d 172, 173 (1978) (“As an act of derogation of the common law, these requirements must be strictly construed as conditions precedent to the bringing of suit.”). Thus, where the issue involves the timing of a suit or notice of claim, New Jersey courts will reach the same conclusion as the Luciano court. See Port Authority of New York and New Jersey v. Airport Auto Services, 396 N.J. Super 427, 934 A.2d 665 (2007)(recognizing the applicability of substantial compliance, but distinguishing the Zamel precedent on the basis that no timely notice of claim was ever filed). 42 Subsequent decisions by New York’s Appellate Division have repeated the Luciano holding in cases involving straightforward application of the suability statute’s timing requirements. See, e.g. Giannone v. Port Auth. of N.Y. & N.J., 127 A.D.2d 818 (2nd Dept. 1987); Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d 520 (1st Dept. 1996); Ofulue v. Port Auth. of N.Y. & N.J., 307 A.D.2d 258 (2nd Dept. 2003). These holdings neither extend nor contradict the Luciano holding. Thus, consideration of the relevant precedents reveals that the distinction between New York and New Jersey courts is in fact illusory. Both states have a body of case law indicating that the timing requirements of the suability statute require strict compliance, but allowing for substantial compliance on the form and content of the notice of claim. 8 8 One cursory 1992 First Department decision, Patel v. Port Auth. of N.Y. & N.J., 184 A.D.2d 235 (1st Dept. 1992), upholds a trial court decision indicating that a letter from plaintiff did not in that case comport with the notice of claim requirements. Patel cites to Luciano for the proposition that the Court cannot waive jurisdictional defects, but does not explicitly address the facts of the case beyond the fact that it involved a letter nor conduct any analysis of the suability statute. An additional First Department decision further relies on Patel in dismissing a complaint for plaintiff’s unrevealed notice of claim deficiency. City of New York v. Port Auth. of N.Y. & N.J., 284 A.D.2d 195 (1st Dept. 2001). 43 C. Contrary to the First Department’s Conclusion in This Case, Strict Construction of the Suability Statute As Called for Under New York Law Dictates the Same Result as Zamel: The alleged distinction between New York and New Jersey cited in the decision below did not begin to arise until the early 2000’s (roughly fifty years following the original enactment of the suability statute and more than thirty years following Zamel ) when New York’s lower courts began to misconstrue Luciano and publish conflicting opinions on the issue, beginning with 2002 Supreme Court decision in Mergrant Props. v. Port Auth. of N.Y. & N.J., 191 Misc.2d 334 (Sup. Ct. New York 2002), and continuing with the Supreme Court, Appellate Term decision Port Auth. of N.Y. & N.J. v. Barry, 15 Misc.3d 26, 38 (App Term, 2nd Dept. 2007), upon which the First Department relies in the decision appealed from. In Barry, the Supreme Court Appellate Term reasoned that application of the First Department’s Luciano and Lyons holdings, discussed supra, prevented any application of substantial compliance to the Port Authority’s suability statute whatsoever. Plaintiff posits that Barry was wrongly decided and that it was error for the First Department to rely on it. In the decision appealed from, the First Department cites the Barry decision for the proposition that “General Municipal Law § 50-e contains a ‘substantial compliance’ provision, permitting courts to consider whether a 44 plaintiff has substantially complied with the statute’s terms; the Port Authority’s suability statute, on the other hand, contains no substantial compliance provision” [ A. 546-47]. The very clear problem with that statement is that the issue in the instant case relates to the content of the notice of claim, particularly with regard to the identification of injuries and damages, which should benefit from the “so far as then practicable” language of Unconsolidated Law §7108, language which, as described above, is shared with the General Municipal Law. Thus, strict construction of the type envisioned by the Luciano court dictates the result reached in Zamel, precisely opposite the conclusion reached by the Appellate Term in Barry and the First Department in this case. That is, if the suability statute and the General Municipal Law share the same “so far as then practicable” language relative to statements of injuries and damages, then strict construction would counsel that the treatment of notices of claim in this context should be the same under either statute, i.e. should benefit from the doctrine of substantial compliance. The very phrase “so far as then practicable,” which, of course, is an explicit part of the statutory text, has always been considered an expression of “substantial compliance.” See, e.g. Shea v. Incorporated Village of Head of the Harbor, 180 A.D.2d 675, 677 (2nd Dept. 45 1992)(“inasmuch as the plaintiff's obligation to specify injuries in the notice of claim extends only ‘so far as [is] practicable’ when the notice is served, it was error under the circumstances for the Supreme Court to dismiss the entire action against the Village because of the alleged deficiencies in the notice of claim.”); Long Island RR v. State Bd. of Tax Commrs. , 231 N.Y. 221, 227 (1921)(“I think the protests filed on grievance day and the petition complied with the statute so far as was practicable, and this is all that the statute required”). Even the Barry decision acknowledges yet fails to heed that “where a suability statute provides for consideration of substantial compliance, [a court may] engage in such analysis.” 15 Misc.3d 38.9 9 In reaching the conclusion that the General Municipal law but not the Port Authority suability statue contains a substantial compliance provision, neither the Barry decision nor the decision appealed from cite to a specific sub-section of the General Municipal law. In order to conclude that there is a distinction between the two statutes when the form and content requirements of each statute contain the same “so far as then practicable” language, it has to be assumed that these courts consider paragraph (6) of §50-e, allowing for the correction of mistakes, omissions or defects, to be the “’substantial compliance’ provision.” Plaintiff asserts that this is incorrect. Under a §50-e analysis the substantial compliance question is a factual question regarding the sufficiency of the content of a notice of claim to be addressed separately from the statute’s amendment provisions which allow for correction in the event a notice of claim is deemed insufficient. In other words, the amendment provision is a savings clause that allows correction after a failure to even so much as substantially comply with the notice of claim requirements has been identified. See, e.g. Ingle v. New York City Trans. Auth., 7 A.D.3d 574 (2nd Dept. 2004)(holding that a notice of claim did not satisfy substantial compliance where appellant demonstrated that notice of claim was “plainly inadequate” but holding that the trial court did not abuse its discretion in disregarding the error in the notice of claim in light of the lack of bad faith or prejudice to defendant.); see also Shea v. Incorporated Village of Head of the Harbor, 180 A.D.2d 675, 679 (Balletta, J. dissenting)(“In addition, the notice failed to set forth “so far as then practicable” the items of damage or injuries claimed to have been sustained. The plaintiff's notice merely stated in this regard that the plaintiff had sustained “extensive 46 In fact, in Parochial Bus Systems, Inc. v. Board of Educ. Of City of New York, 60 N.Y.2d 539 (1983), the very case originally relied upon by the Luciano Court and again cited by the Barry court, this Court struck exactly the balance suggested here. In Parochial Bus Systems, the Court of Appeals was faced with the question of whether the plaintiff could rely on a notice of claim it served upon the wrong governmental body. In any case where a school district is to be sued, section 3813 of the Education Law requires that a notice of claim be served on the school board in conformity with General Municipal Law §50(e). However, just as with the Port Authority’s suability statute, the Education Law has prescribed specific terms upon which a late notice of claim may be filed. See Education Law §§ 2a and 2b. Significantly, the Court of Appeals acknowledged the applicability of substantial compliance with regard to the content of the notice of claim under the Education Law, but held that the failure to timely serve or notify the correct entity are fatal jurisdictional defects. See, Parochial Bus Systems, 60 N.Y.2d at 547 (“Although we have previously held that, where injuries ... including hospitalization together with special and general damages, loss of services and society”. Such generalities fail to meet the specificity requirements of the statute.”). This distinction is implicit in the First Department ruling in DaSilva v. C & E Ventures, Inc., 83 A.D.3d 551 (1st Dept. 2011), which allowed a claimant to “clarify and amplify” his claims in a subsequent bill of particulars based on the course of discovery only after finding his initial notice of claim to have been sufficient despite lacking notice of the amplified claims. Were the specific amendment provisions of paragraph (6) necessary to work such an adjustment, then the result in DaSilva would be impossible. 47 the school district has been ‘sufficiently informed’ of the claim, ‘all that is required is substantial compliance with the statute’ regarding the degree of descriptive detail in a notice of claim, we have, nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled.” (internal citations omitted)). Luciano’s citation to Parochial Bus Systems was apt in that like the Education Law, the Port Authority suability statute contains strict conditions precedent with regard to the timing of notices of claim, yet provides language akin to the General Municipal law when it comes to the substance of that notice of claim. Luciano’s citation to Parochial Bus Systems therefore brings with it not just the Court of Appeals’ jurisdictional analysis, but also its acknowledgment of the applicability of substantial compliance regarding the content of notices of claims under such a construction. Yet, what we have in the decision appealed from and in the Barry holding is an abdication of any textual analysis of the Port Authority’s suability statute in favor of a blanket reassessment of the Luciano and Parochial Bus Systems precedents as calling for strict compliance with the statute rather than strict construction of the statute. This is precisely why the explanation provided in cases like Privat Air, S.A., supra, that New 48 York and New Jersey are simply divergent on the question of construing waivers of sovereign immunity, is misplaced. Whether New York construes waivers of sovereign immunity more narrowly than New Jersey is of no moment, because the suability statute’s “so far as then practicable” is an explicit expression of the doctrine of substantial compliance within the statute itself. It therefore does not require a broad or liberal reading of the waiver of sovereign immunity to conclude that the suability statute provides for substantial compliance in terms of the content of notices of claim. For example, in Kolnacki v. State, 8 N.Y.3d 277 (2007), this Court applied New York’s strict construction of sovereign immunity waivers to the New York Court of Claims act. The Court held that the plaintiff’s complete failure to state “the total sum claimed” as was explicitly required by the statute was a jurisdictional defect requiring dismissal of the claim. Significantly, however, the Court noted that strict compliance as a jurisdictional barrier extended only so far as what the plaintiff was “required to allege” under the statute, and even then indicated that an “estimate” rather than complete precision is all that would have been required to secure jurisdiction. See Kolnacki, 8 N.Y.3d at 281 (stating that “The failure to satisfy any of the conditions is a jurisdictional defect. And while it may be true that damages in personal injury cases are harder to 49 quantify at the outset, we fail to see why this prevents a claimant from providing any estimate whatsoever. A claim may always be amended at a later time, if necessary.”) If strict compliance with the jurisdictional requirements of the Court of Claims Act can be accomplished by a mere “estimate” where a specific dollar figure of damages is explicitly called for, then it is a fortiori the case that Mrs. Andrucki’s notice of claim should be deemed sufficient to invoke the Court’s jurisdiction where she was only required by the express terms of the Port Authority’s suability statute to state her damages “so far as then practicable.” Indeed, in Kolnacki, this Court made clear that “it is for the Legislature, not this Court, to set the terms of the State's waiver of immunity,” contrasting the specific requirements of the Court of Claims Act with other statutes wherein the legislature made different choices in terms of what claimants would be required to allege. Id. at 281. Although the New Jersey Supreme Court in Zamel did reference New Jersey’s “liberal” construction of waivers of sovereign immunity, it ultimately concluded that the issue was “simply a matter of legislative understanding” and that there is “nothing in the pertinent statutory history or terminology” of the Port Authority’s suability statute to indicate a rejection of substantial compliance. Zamel, 56 N.J. at 6. Moreover, 50 subsequent New Jersey case law has made clear that New Jersey courts do, in fact, like New York courts, strictly construe the Port Authority’s waiver of sovereign immunity. See, e.g. Mathews v. Port of New York Authority, 163 N.J.Super 83, 85, 394 A.2d 172, 173 (1978) (noting with regard to the Port Authority suability statute that “[a]s an act of derogation of the common law, these requirements must be strictly construed as conditions precedent to the bringing of suit.”). Thus, it is a mistake to conclude that the New Jersey Supreme Court applied the doctrine of substantial compliance to the Port Authority’s suability statute without sufficient regard for strict textual parameters of the statute. This, no doubt, is why New York’s original precedent on point, Luciano, cited Parochial Bus Systems for the limited proposition that timing defects are fatal to jurisdiction, and yet when turning to issues regarding the content of the notice of claim, distinguished Zamel based only on the facts, and not with regard to New Jersey’s construct of sovereign immunity waivers. In any event, it is also worth noting that the strand of New Jersey law that favors liberal construction of sovereign immunity waivers finds common cause with the Court of Appeals’ own Justice Cardozo, who warned that “the exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by 51 refinement of construction, where consent has been announced.” See Taylor v. New Jersey Highway Auth., 22 N.J. 454, 469-70, 126 A.2d 313, 322 (1954)(cited by the Zamel court and quoting Anderson v. John L. Haynes Constr. Co., 243 N.Y.140(1926)). With such pronouncements deeply embedded in NY’s jurisprudence, it is easy to see why blind adherence to a framework that misconstrues “strict construction” as the direct equivalent of “strict compliance” is clear error. As described above, the very phrase “so far as then practicable,” which, of course, is an explicit part of the statutory text, is itself an acceptance of substantial compliance. See, e.g. Shea, supra; Long Island RR, supra. Therefore, the only way to avoid applying the doctrine of substantial compliance to the Port Authority’s suability statute – at least to the extent of the content of the notice of claim as it at issue in this case – is to read that phrase out of its text. This is exactly the type of “refinement of construction” that Justice Cardozo warned against. See Anderson, supra. Thus, it is simply not accurate to claim, as the Privat Air, S.A. court does, that New York’s strict construction of waivers of sovereign immunity should lead to a different result than was reached by the New Jersey Supreme Court in Zamel. 52 Indeed Justice Heitler recognized this very point in the first instance in her denial of Port Authority’s motion to dismiss this case when she noted that “the legislature’s intent to condition the waiver of sovereign immunity solely on compliance with specific temporal restrictions and the filing of a notice of claim is very clear” [A. 74]. Significantly, Justice Heitler’s reasoning conforms to previous First Department precedent discussed in Point I above in which the First Department held that it was not an abuse of discretion to allow a plaintiff to later alter his allegations where had already met the “specific requirements regarding time and content.” DaSilva v. C & E Ventures, Inc., 83 A.D.3d 551 (1st Dept. 2011). The Court of Appeals has never addressed the question of whether the Port Authority’s “suability statute,” with its “so far as then practicable language,” was intended to be consistent with the doctrine of substantial compliance. New Jersey’s highest court has already held that it does, and New Jersey residents who seek to interact and do business with the Port Authority are at a distinct advantage relative to their New York peers who continue to be at risk of having their meritorious claims thrown out of court on suspect technical grounds. As the First Department intimated in the decision appealed from, had Mrs. Andrucki filed her case in New Jersey, her suit against the Port Authority would have proceeded. Yet the very 53 same case has been dismissed in New York on the basis of an alleged quirk of law. It strains credulity to imagine that the drafters of the concurrent legislation intended such a result. And indeed, as New Jersey’s Supreme Court has recognized, “[s]ince 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.” Borough of Moonachie, 38 N.J. at 425. The above analysis reveals that New York and New Jersey had been on a “common path of judicial decisions” until approximately ten years ago when the lower courts began the instant detour wrongly followed in this case by the First Department. It’s not a question of bringing New York in line with New Jersey, but rather of recognizing that the two never truly diverged. It is, in fact, faithful adherence to New York’s own precedents, namely Luciano and Parochial Bus Systems, that demands a result similar to the Zamel case. Thus, the common law rule acknowledged by the First Department – that an estate representative like Mrs. Andrucki is entitled to rely on her decedent’s prior notice of claim – should be applied relative to the Port Authority even if that rule is considered a manifestation of substantial compliance.10 10 To the extent the doctrine of substantial compliance is predicated on a lack of prejudice to the governmental defendant, plaintiff stresses that the Port Authority 54 POINT III THE TRIAL COURT PROVIDENTLY EXERCISED ITS DISCRETION IN GRANTING PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT Finally, although the First Department failed to reach the issue, the core of this appeal is actually the Port Authority’s deliberate decision to make a motion for dismissal in lieu of attending trial, and to repeatedly assert that the mere allegation that subject matter jurisdiction is lacking provides justification for Port Authority’s complete disregard of the judicial process. Port Authority’s non-appearance at trial, which was openly and notoriously defiant, establishes an unshakeable foundation for default judgment. Should this court overturn the First Department’s decision in this case, as it should, then it is safe to say that Justice Shulman’s discretionary decision not to relieve Port Authority of its default must stand. C.P.L.R. §3215 is clear that “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 judgment against him.” See, C.P.L.R. §3215(a) (emphasis added). Under subsection (b), the court – with or without a jury attended Mr. Andrucki’s deposition [A. 489], and as a repeat asbestos litigation defendant, was aware at all times that mesothelioma is an incurable and invariably fatal disease. 55 – may enter judgment and make an assessment of damages, and the question of whether to grant plaintiff’s motion or excuse defendant’s default is within the court’s discretion. See, e.g. Koppell River Realty, Inc. v. Rodriguez, 85 A.D.3d 520 (1st Dept. 2011)(“Supreme Court providently exercised its discretion in finding that appellants’ tactical choice not to answer the complaint was not an excusable mistake.”) A. Port Authority’s Intentional Failure to Proceed to Trial Is an Independent and Inexcusable Basis for Default Judgment Since C.P.L.R. § 3215 explicitly identifies the failure to “proceed to trial of an action reached and called for trial” as a basis for default, and it is undisputed that Port Authority did not attend Mrs. Andrucki’s duly called trial, there can be no argument whether the default exists. The only question is whether the default can be excused. Critical to that question is the fact that Port Authority not only admits that it failed to proceed to trial, it has consistently acknowledged that its failure to appear at trial was intentional and strategic. For example, during oral argument on plaintiff’s motion for a default judgment, counsel for Port Authority admitted that “the first day of jury selection, I did go to [plaintiff’s counsel] and tell him we’re not participating in the trial because we have a motion pending” [A. 32]. 56 “An intentional default is ipso facto inexcusable.” Wilf v. Halpern, 234 A.D.2d 154 (1st Dept. 1996). For this reason alone, Port Authority cannot be excused from its admitted default. See, e.g. Koppell River Realty, Inc., 85 A.D.3d at 520 (“appellants’ tactical choice not to answer the complaint was not an excusable mistake.”); Holtz v. Wilson, 155 A.D.2d 803, 805 (3rd Dept. 1989) (“a deliberate choice clearly fails as an excuse for defaulting.”); See also 300 W. 46th St. Corp. v. Clinton Hous. W. 46th St. Partners L.P., 19 A.D.3d 136 (1st Dept. 2005)(upholding discretionary trial court decision to reject defendant’s excuse for default as inadequate where defendant admitted receiving legal papers and understood their significance). Nor does Port Authority’s subjective belief that its theory of non-jurisdiction was correct render its intentional act excusable. Lounsbury v. Kiehl, 255 A.D.2d 774, 776 (3rd Dept. 1998) (“The mere fact that one had made erroneous assumptions regarding the validity of an action and the need to defend against another's allegations of wrongdoing is an insufficient basis for vacating a judgment.”); Statum v. Lumberman's Mut. Cas. Co., 106 Misc.2d 442, 445 (N.Y. App. Term. 1980) (“The default of the defendant was not due to excusable neglect. It was willful and deliberate, albeit ill-advised. That the defendant believed the complaint to 57 be baseless, that it was reluctant to spend money to hire a lawyer - the motives are understandable but do not excuse a failure to answer.”) Port Authority should not be permitted, as it did before the Appellate Division, to focus solely on the question of whether it “answered” the complaint through its service of an “acknowledgement of receipt.” Justice Shulman was very clear that although Justice Heitler had already found the Port Authority to be in default for failing to answer, Port Authority’s failure to appear at trial, the very subject of plaintiff’s motion for a default judgment, constituted an independent basis for default [A. 26-27]. Justice Shulman proceeded on the basis, inter alia, that “before the court is essentially [Port Authority’s] nonappearance at trial . . .” [A. 35]. And indeed, the basis of plaintiff’s motion, and the principle topic at oral argument, was Port Authority’s decision not to attend trial [A. 19-68]. 11 Thus, the judgment in this action, signed by Justice Shulman, ultimately states that the grounds for the default judgment are “that Port Authority failed to answer or to proceed to the trial of this action when it was reached and called for trial” [A. 11 (emphasis added)]. Therefore, Justice Heitler’s determination regarding Port Authority’s answer is not 11 Although Justice Shulman also indicated that he was constrained by Justice Heitler’s ruling as the law of the case, reasoning that a party cannot be in “double-default,” the court also noted that “you could have multiple defaults . . . as the process takes place,” and characterized the issue as being Port Authority’s overall decision to “intentionally stay away from the litigation process” [A. 46-47]. 58 necessary to the conclusion that Port Authority defaulted in this action, because Port Authority’s failure to attend a duly commenced trial, a tactic which it not only acknowledges, but touts as intentional and strategic, and which has always been the focus of plaintiff’s motion for a default, demonstrates a solid and inexcusable default. See, e.g. Koppell River Realty, Inc., supra. B. By Failing to Appear At Trial, Port Authority Waived Its Right to Notice Regarding the Assessment of Damages Against It Because Port Authority wholly ignores the fact that its absence from trial was a basis for the default judgment against it, it likewise fails to recognize that it was not entitled to a separate inquest on damages. As Justice Shulman stated “since [Port Authority is] in default, and since you didn’t participate at the trial, there is no basis to say: Judge, I was denied due process referable to the issues raised on this inquest” [A. 60]. That is, under C.P.L.R. § 3215(b), the trial court is permitted to make an assessment of damages without a jury, and, although a defaulting defendant will ordinarily be entitled to participate in an inquest on damages, pursuant to C.P.L.R. § 3215(g)(1) the court may “dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial.” 59 Thus, Justice Shulman was quite accurate in saying to Port Authority that “You had the hearing . . . I can take judicial notice of the very transcript where there was a full hearing, where there was an empty chair that was intentional” [A. 62]. C. Justice Shulman’s Assessment of Damages Was Reasonable and Properly Based on the Evidence Plaintiff supported her motion for a default judgment with a verified complaint as well as relevant excerpts of trial testimony, including pain and suffering testimony from Mr. Andrucki and expert medical evidence [A. 370-481]. Justice Shulman weighed the damages with the added context of a nearly-completed 18 day trial (evidenced by 3,600 pages of transcript in over 20 volumes), which ended abruptly only due to Port Authority’s absence. Justice Shulman was quite right in noting that an additional inquest on the heels of such a lengthy trial process would be akin to “reinventing the wheel” [A. 62]. In addition, it is important to note that Justice Shulman additionally considered verdict reports before drawing a conclusion that was “mindful of the circumstances” [A. 62]. In fact, Justice Shulman’s assessment of damages is nothing short of conservative when compared to past jury awards for mesothelioma victims. See, e.g. In re New York City Asbestos 60 Litig. – D’Ulisse v. Amchem Prods., 16 Misc.3d 945 (Sup. Ct. New York 2007) (analyzing mesothelioma jury awards ranging from $1.2 million to over $50 million). Indeed, Justice Shulman’s assessment of damages falls short of the First Department’s determination of reasonable compensation for the mesothelioma victim in Penn v. Amchem Prods., 81 A.D.3d 475 (1st Dept. 2011). In that decision this court reduced a jury’s verdict on loss of consortium and pain and suffering, but allowed the plaintiff to stipulate to reasonable compensation totaling $3.76 million. Id. CONCLUSION Simply put, once a claimant against the Port Authority satisfies the notice of claim requirements of the suability statute, he should not then be penalized for dying during the requisite 60 day waiting period of the very injuries he identified in his notice of claim, but should remain on equal footing with those who are fortunate enough to suffer non-fatal injuries. Regardless of whether this court considers the Holmes and Mingone cases to derive from the doctrine of substantial compliance, it is exceedingly obvious that this state’s jurisprudence has a long history of protecting the rights of the aggrieved – particularly those fatally injured – from exactly the sort of harsh and unjust result wrought by the First Department in this 61 case. It was for precisely these reasons that over sixty years ago the legislatures of both New York and New Jersey made a concerted and successful effort to expose the Port Authority to liability in tort “to the same extent as a private entity” to allow men and women like Mr. and Mrs. Andrucki access to the courts to address their meritorious claims against the Port Authority. Although that access was predicated on certain preconditions, nothing in the suability statute, particularly in light of its “so far as then practicable” language, provides support for the notion that Port Authority should be permitted to escape liability on specious hyper- technical grounds and to flout the authority of the Court on its own ipse dixit assertion of such grounds. New Jersey’s high court has already recognized this and acted to protect its citizens from such procedural abuses. It is high time that this Court do the same for New York’s citizenry. Port Authority’s position in this case is anathema not only to the history and text of the suability statute, but also to the fundamental principle that cases should be resolved on the merits whenever possible. The trial court in this case recognized this twice over – first in denying Port Authority’s motion to dismiss and again in addressing its claims a second time on plaintiff’s motion for a default judgment. Moreover, in citing to the long string of New Jersey cases in which the doctrine of substantial 62 compliance has been applied to the Port Authority suability statute in particular, the First Department also recognized the troubling nature of the result it reached. Unfortunately, the First Department felt constrained to follow what it wrongly perceived to be a conflicting strain of New York law. This Court now has the opportunity to act in the interest of all New Yorkers by correcting that misapprehension and holding Port Authority responsible for the death of George Andrucki who fell victim forty years ago to Port Authority’s sustained negligence in the construction of the World Trade Center and who’s widow has now fallen victim to its callous disregard of the judicial process, which is not only a danger to the smooth operation of the courts, but is also a manifestation of precisely the sort of “virtual autonomy” and “super state” status the suability statute was designed to end. Thus, for all the reasons stated, plaintiff respectfully requests that the Appellate Division’s May 28, 2013 Decision and Order appealed from be reversed, and that plaintiff’s judgment be reinstated. 63 Dated: New York, New York November 12, 2013 Respectfully submitted, WEITZ & LUXENBERG, P.C. By:____________________ Alani Golanski, Esq. Daniel Horner, Esq. 700 Broadway New York, New York 10003 (212)558-5500 Attorneys for Plaintiff-Appellant ADDENDUM , . 1 New York State. LEGISLATIVE ANNUAL , 1950 ~ K~t-.\() \ '(\\.-\~ , I qf'~6 Published by NEW YORK LEGISLATIVE SERVICE, INC. 299 BROADWAY, NEW YORK 7,' NEW YORK THIS DOCUMENT HAS BEEN ADDED BY NY LEGISLATIVE SERVICE, INC. IT IS NOT CONTAINED IN THE GOVERNMENT FILE, HOWEVER, WE FEEL THAT IT MAY BE HELPFUL. GOVERNMENT Audit and Control Department Memoranda , "L County borrowing A.I.2549,Pr.2698,Marble Ch.740 Local Finance Law, § H.OO, sub. 3a, par. a, in relation'to a period of probable usefulness for financing additional expense caused by change of a county fiscal year. Section 352 of the new County Law (Assembly Int. 1613, Pro 1659) pro- vides that the county fiscal year shall begin Jan. 1st and end with Dec. 31st. Most county fiscal years h:we begun Nov. 1st and ended with Oct. 31st. This change of fiscal year will necessitate that expenses for a four- teen month period rather than a twelvemonth period must either be raised in one year or borrowed. Subdivision 38 of paragraph "a U of section 11.00 of the Local Finance Law provides that the period of probable usefulness for such -borrowing shall be three years. Certain counties believed that this would work a hardship and that such period should be extended to five years. This bill was introduced at the request of the commis sian on recodificatiop. of the County Law to make such extension. The bill takes effect immediately. This department has no objection to the approval of this bill. Municipal financing, S.I.2523,Pr.2733,W.J .Mahoney Ch.779 improvements Local Finance Law, § 107.00, in relation to the financing by munici-' palities of the cost of capital improvements which are to be paid for in part by the United States or the state of New York. This bill amends the Local Finance Law, section 107.00 (b); to pro- vide that where bonds are issued by a municipality to finance a capital improvement, a down payment is not required in relation to the portion of the cost which is to be paid by the United States or the State, For example, under the existing provisions of section 107.00, the is- suer would be able to issue bonds in the maximum amount of $450,000 to finance its $500,000 share of a $1,000,000 project where 50% of the cost would be paid by th.e United States or the State. Under this bill, the 5% down payment would be based on the local share of $ 500,000 (instead of on the total cost of $1,000,000) with the result that $.475,000 could be fi- nanced by the issuance of bonds. The Department of Audit and Control is of the opinion that a down payment, in the case mentioned, should be based on the-cost to the muni- cipality, rather than on the total cost. The Department of Audit and Control has requested the introduction of this bill and recommends its approval. Port of New York Authority Memoranda Port of N.Y. Authority, suits A.I.27l4,Pr.2866,Stephens Ch.301 In support of an act agreeing with the State of New J ers ey with res- pect to suits against The Port of New York Authority. By the terms of the above entitled Bill, the States of New York and New .Jersey consent to suits, actions or proceedings against The Port of New York Authority. The Port Authority has beenheld, by decision of the courts of the States of New York and New Jersey and the FederalDistrict Court, immune from suit on the ground that nowhere in the Compact creating the Port Authority could there be found any permission to sue it. Since the Port Authority is the direct 203 GOVERNMENT Port of New York, Authority Memoranda agent and instrumentality of both states, the courts concluded that in the absence of an express consent by the states to suit against the Port Au- thority, the Port Authority sharec;:l the governmental immunity of the states thems elves. l Thi s Bill provides for the concurrent consent of the state of New York with the' State of New Jersey which the courts have held to be necessary. The consentis limited by the usual conditions generally imposed upon suits against governmental bodies. 2 There is the customary short statute of limitations, generally applicable to suits agaillst governmental agencies, of one year, and the requirement that a notice of claim shall be served on the Port Authority at least sixty days be'fore any suit, action or proceeding is commenced. In addition, the bill is not retroactive. Since the Port Authority is a governmental agency of both states, the bill provides that no injunction shall lie against the Port Authority, its Commissioners, officers or employees, except upon complaint of the At- torney General of either state, each of whom is expressly authorized to brin~ any proceeding for an injunction, in his discretion, on behalf of any person. The previous consents to suits, actions and proceedings against the Port AuthorHy3 which were given by the States of New York and New J~rsey in connection with the agreements between the Port Authority and muni- cipalities for the operation ·of airports, marine terminals, and rehousing projects are expres sly protected from rescission. We respectfully request that the Bill be reported and passed. Port of N.Y. Authority,traffic rules S.I.2579,.Pr.2789,Mitchell Ch.774 In support of an act agreeing with .the state of New Jersey with res- pect to rules and regulations governing traffic on vehicular crossings o- perated by the Port of New York Authori,ty', prescribing proceedings and penalties for violations thereof and repealing chapter two hundred fifty-one of the laws of nineteen hundred thirty-four entitled "An Act establishing rules and regulations for the control of traffic on the inters tate· bridges and .' tunnels operated by the Port of New York Authority and prescribing pro- ceedings and penalties for their violations. 11 The above-entitled act is presented to the Legislature as a direct re- sult of the explosion of a truckload of carbon bisulphide in the Holland TunJ:lel, which occurred on May 13, 1949. The truck loaded with this highly volatile and inflammable liquid en- lHergott v. The Port of New York Authority; 269 .App. Div. 770 (1945); P.ink v. The Port of New York Authority, N.Y.L.J., Feb. 3, 1938, p.567; LeBeau Piping Corp. v.City of New York, The Port of New York Autho- rity, etal., 170 Misc. 644, (1938); Voorhis v. Cornell Cont. Corp. and The Port of New York Authority, 170 Misc. 908 (1938); Miller v. The Por~ of New York Authority, 18 N.J. Misc. 601 (1939); Howell v. The Port of New York Authority; 34 F. Supp. 797 (D.N.J. 1940); Roochvarg v. The Port of New York Authority, N.Y.L.J., Sepl'. 27,1947, p. 637; 39th - 40th Corp. v. The Port of New York Authority, 188 Misc. 657 (1946); Port of New York f\uthority v. Robert Elman et al., 196 Misc. 91, 92 N.Y.S. 2d 115 (1949). 2Cf. General Municipal Law §50-e; Public Authorities Law §569-a; Admin- istrative Code of City of New York §349a-l.O. 3L .1947, c. 802; L.1947, c.6 31; L.l948, c·.534. 204 ! j: INQUIRY DEMANDED ON PORT AUTHORITY; TOLLS, SALARIES HIT Four Legislators From City Attaok Agency's Praotices, ASK Sifting of Powers ISOVEREIGN SUPER-STATE' Vldependent status Deolared to Have Been Abused, With Too Much Branching Out By DOUGLAS DALES SJ)ee:lal tD T1U K.n'i' You 'IlMU. ALBA.L'iY, Jan. lo-Practices of the Port of New York Authority were denounced vigorously here today as New York City legisla- tor! moved for sweeping investlga. tiona into the powers of the bi- ,tate body, Tha Authority operates Hudson IUver orossings, including the George Washlngton·Bridge and the I..incoln. a.nd Holland Tunnels, as weU as alrports and several other wterprises in New York City and northern New Jersey. The attacks on the agenc)', made by both Republicans and Demo- crats, centered on the geMl'al alle- gation that It enjoyed virtual autonomy. The legislators also took the AUthority to task for its zchedule of taUs, the size of ~al JIies paid to administrative offi- cers, and tt.e tact that it was not llubject to court determinatlons:_ Three Inquiry proposals MAde Three separate proposals were made for joint legislative commit· te~ to inquire into the Author!· ty'. operations, tWCl of them by ~mocrats and the third by a. Re- publloan. Assemblyman Nathan Lashln. Democrat, of the Bronx. called for "n investigatlng' committee of six members to "revise the framework of the Authority in the light of it.!! present operations.." Senator John lit Bralsted Jr. and Assemblyman Edward V. Cur- TY, Democrats, of Richmond, caUed for a similar investiga.tion in com- panion resolutions, and attacked the Port Authority as "8. sovereign super-state." The RepubHcan proposal, oalling tor a seven-man committee, was made by Assemblyman SBJl1uel Ro- man Of Manhattan, who assailed the conuact-awardinj\" policies of the Authority. Eff~rts are under way to get JlimUar resolutions introduced in the New Jersey Legislature, Which convened at Trenton today. The proposal of the RIchmond legi!lators calls for an Inquiry into the toll charges, but would not be lImi ted to that subject. There has been agitation for several years from automobile associatioM for a reduction or elimination of toll charge! for the Holland Tunnel, which is sald to have pald tor it- self already. Assemblyman Lashin said he was not concerned so mUch with the toll situation as he was With the policies and practices which he sald had diverted the Authority trom its original IJurpose of providing :Hudson River crossings "into a sel!-perpetuatlng organization./I Contract DisIJute~ed Lending addittonal interest to the proIJosals for legisiative Inves- tigations of the Port Authority was the charge ItIJl.de last Thurs. day by the 1!erritt-Oha]Jman & Scott Corporation that the author- ity bad submitted incomplete in- tonnation to Gov. Thomas E Dewey and Gov. Alfred E. Driscoli of New Jersey to avoid their vetoes of a contract awarded 'for the Union Bus Terminal in New York City. ' The Merritt-Chapman & Scott CO!'IJoration suhmitted the low bid of ~8.938,611 for the bus termlnll.l on Eighth Avenue between Forty and Forty-first streets, but the contuct was awarded to the seQ- and lowest bidder, the Turner Con- rtruotion Company, whose bid was f9,194,759. The Port Authority explained its award by saying It believed the gl:eater experience of the Turner company in city building construc- tion gave greater assurance that the terminal would be completed by next Nov. 1, Assemblyman Roman asserted that the Authority had exceeded its powers in the m.atter of the award, and added: . "Complaints ha.ve been mount. ing from m.any quarters for many years over the Port Authority's conduct of its affairs, on the fix- Ing of toll charges, the cost of its admlnlsl:r&tlon, the vast expendi- tures for consUltation tteS and its general relationship wJth the en- Contlntlad on Page 46, Column 2' ~be~cltrUorlll!!\mtS Published: January 11, 1950 Copyright © The New York. TImes INQUIRY DEMANDED minals not ~ontempla.ted when itwas set up in 1921 by an inter-state compact. ' ON PORT ~UTHORITY One of tbe functions he wouldft have a legislative committe per-form- would be a recodification of the laws relating to the authority Continued from Page 1 which ha.ve been enacted since1921. trepreneurs who seek to do busi- Braisted for Lower ',rolla ness with the Authority.", Senator Braiated declared he Assemblyman Lashin, calling the was Confident that an investigation Authority "a. creature removed would show that an irom,cdiate re- from allloce,l or state supervision," duction in tolls was feasible. Such submitted four complaints against a reduction) he predicted, -vould the bi-state body in addition to its not reduce the total revenUes of contract policy. the' authority since it would result These were that the Authority, in a. larger volume of traffic. which is not suable in the courts, Pointing out that the authority's had abrogated airline leases when toll policies were subject to no su~ it took over the International Air- pervislon by any other GovernlJlent port at Idlewild, Queens; that the agency, the Richmond Senator Authority, asserting it was not added: ' subject to "visitation" by any ('Tpe Port Authority is a BoVer~ municipal authOrity, had con- eign super state. Ita members do structed buildings in New Yorlt not have to run for election and City without filing plans or obtain- thus account to the public for their lng certificates of occupancy; tha.t acts. Under the circumstances, it had summarily dispossessed ten- therefore, it should be more than ants without court orders; and willing to submit to an investiga- that it had used income from Uon in order that the pUblic have profitable enterprises such as the a complete accounting of its activ- Holland Tunnel a.nd George Wash~ Hies.') Iington Bridge to finance projects The Port Authority is composed lof doubtful profitability. of twelve non-l3alaried commission- The Bronx legislator asserted erS' six appointed by the Governor also that the salaries of some of of New York and, siX by the Gov~ the executive officla.1s were' out ernor of New Jersey. The appoint- of line with those paid to other ments are for six-year terms. public officers, He noted that . the salary of the director, Austin To Aid Xnqulry, Says Cullman J. Tobin, $45,000 a. year, was Howard S. Cullman, chairma.n Of higher than that of either Gnv- the Port of New York Authority, ernor Dewey ($25,000) or Mayor reaChed in New Yo~k for COIDt;nent O'Dwyer ($40,000).' on the Albany charges last mght) Mr. Lashin said that the author- said: tty hat' used its immunity from I "I have no cominent. I will be suit as "a sword rather than a delighted, as will my fellow co;n~ shield" despite the fact that it hadl missioners, and .the staff, to gwe branched out into the operation oflany and full information regar~ airports, and bus and freight ter~ ing the a.ctivities of this public, bl- I state body to any appropriate committee." Driscoll Asked ~ala.ry Data. S~clu to TIn NtW YoU Tr!.lU. - TRENTON, N; J., Jan. lO-G<)V'i Alfred E, Driscoll of New Jersey, started inquiries Dec. 30 into the I' salaries of officials of the Port of New York Authority" by asking: Authority officials for copi~s of minutes of the commissioners' meeth;igs at which saJaries for top executives and technicians were fixed. , All far as is known here, no reply has been received yet. , There was no reference to the Pori. Authority quel?tion at toda.;:."a opliI1ing 'sellSion', Of llta New Jerpey' StAte Legj.lUatUre..· .' : " ..: ~1}cP;-ctltUork QtimClI Published: January 11, 1950 Copyright © The New York Times !DEWEY AID ASKED AGAINST PORT BODY Trade Board Also Invokes Help of 'Driscoll to Have Authority ,Made Suable in Courts The New York Board of Trade announced yesterday that it had asked Governor Dewey and Gov. !Alfred E. Driscoll of New Jersey to favor legislation making the Port of New Yor:k Authority suable and capable of bringing suit. The letters, over the signa~ ture of Mortimer E. Sprague, pres- ident of the board, transmitted a resolution said to represent· the views of the 2,000 concerns with representatives in the board's membership. Although prepared by the AVia~ tion Section of the board the reso- lutions were described as uncon- nected with the efforts of the air~ lines to bring the Port Authority into court. George W. Whiteside, attorney for the eight airlines that made leases with the city for space and facilities at the. New York In- j ternational Airport at Idlewild, Q).1eensJ has said that he believes the Port Authority is suable now. Mr. Whiteside explained this in connection with a general suit aimed to enforce the provisions of the city leases that the Authority took over., This suit, however, cited the individual commissioners of the Authority and its chief executive personnel. The same procedure was followed in a plea for an injunc~ tion filed Monday in behalf of the three airlines that want to bring 'Boeing Stratocruisers into Idle~ wild. THIS DOCUMENT HAS BEEN ADDED BY NY LEGISLATIVE SERVICE, INC. IT IS NOT CONTAINED iN THE GOVERNMENT FILE, HOWEVER, WE FEEL THAT iT MAY BE HELPFUL, The "resolution of the Board of Trade cites the many other ac- tivities of the Port Authority, such as its bridges, tunnels, rail, water- front .and bus terminals and its grain elevator as reasons for' mak~ ing it subject to suit. In many suits brought in the last ten years, the board says, the Port Author- ity has pleaded its inununity. The beard also points out that the State of New York itself per- mits suit against it through the Court of Claims and that such other bodies as the Triborough Bridge Authority, the New York City Tunnel Authority, the World Trade Corporation, and various parkway and housing authorities are by the terms of the statutes creating them specifically subject to suit. The letters to both Governors ask their thoughtful consideration of the board's proposal /lin the sin- cere belief that the public's inter- ests in the future will be better served and the legitimate interests of the Port of New York Author- ity will be fully protected by amending the Authoritts charter and incorporating in it the power, to sue and be sued." , The Port Authority asked GOY-; erne!' Dewey recently not to favor] such legislation although some~'of' its personnel previously had been, quoted as believing the Authority I would save money if it could take' to court some of the large tort claims that are brought against it. tei)~ ~eltt~otkinnt¢~ Publlshed: January 12, 1949 Copyright © The New York Times PORT ·1\GENCYBILL BERATED AB 'TRIOK' Ellen'stein of Newark Wants New Jersey. Legislature to Reject the Measure Specla to TilE NEW <,olUl :liM>:S. NEWARK, March 24-~rembers of the New Jersey. Legislature have received a stl'ong protest from City Commissioner Meyer C. Ellenstein of this city against adoption of Senate Bill 252, relat- ing to rights to brlng suit against the :'ort of New York Authority, Commissioner Ellenstein de- nounced .the proposed measure as "a trick bill which should be \'e- jeeted in its entirety." He charged that "in reality it would confer on the Po~·t Authority an immunity from suit.": {fA 'Close reading of the bill," he continued, "will disclose that vir- tually the only suit it' would permit would be actions. to enforce pay- ment of bonds and for damages resulting from accidents." Mr. Ellenstein said the bill's provisions would "outlaw suits for defaults and other liabilities under eXisting contracts, claims which have already accrued, recovery for statutory penalties and all' injunc- tions to stop illegal conduct unless the proceedings are brought by the Attorney Genera!." Under the proposed measure, he continued, "the City of New- al';k would be prevented from en- forcing eVen its limited rights under the 'terms of the iniquitous lease, by which the Port Authority has obtained absolute sovereignty over almOtit one-fifth of the entire 8.l,'ea of the olty." Mr. Ellenstein's statement also challenged the Port Authority's contention that "it is engaged in governmental functions," asserting' that the bi-state agency had an- nounced plans to operate hotels, bowling alleys, restaurants and other enterprises in connection wi th its airport facUities.. .. ';rhe Commissioner then said: "The Port A.uthorlty, hil.Ving en- tered the field of private business and industry, and already having unfair competitive advantages over private business and industry to an extent that it is destructive of the welfare of the peo:p1e in the affect- ed communities, should be subject to suits fOr its misdeeds and de- faults the same as everybody else in private business and industry. "TJle kind. of bill which should be 'Passed is a measure that would make it certain that the Port Au- thority does not enjoy the imml1- nity i-t claims, rather than the pro. posed measure to sanction. the cla.imed immuni.ty and to establish it by. legislative fiat." ~1}~A"C\1t llork Sil1lC~ Published: March 25, 1950 Copyright © The New York Times THIS DOCUMENT HAS BEEN ADDED BY NY LEGISLATIVE SERVICE INC IT IS NOT CONTAINED IN THE • GOVERNMENT FILE, HOWEVER WE FEEL THAT iT MAY BE HELPFUL. ALBANY BILL SEEKS' RURAL MEDICAL- AID Woulcj Let School B9ards Hire Doctors and Dentists if They Settled in Region 1;200 MEA~URES OFFERED Effort to Strip Port Authority of Its Legal Immunity From Suit Is Initiated By DQUGLAS D.ALl!JS al'telzl 10 'I'm: NeW Yo'" Tt>1U, ALBANY, Feb. 21-The Demo- crats lJropoaed'legislatiqn today to e~e 'the shortage of medical per- lloMel in rural areas by permittIng Ilchool boarda to engage phYsicians and dentists to care, for school chUdren when they agree to settle in the community. An estimated 1,200 bills j!lIrlmed the Legislature today 8.l3 the dead- line tor introducing lillls except through the Rulea Committee ar- rived at,li P. M. Assembly Clerk AWlley Borkow~ 5Ri 5ald the number of bills in the I lower house would total more than 3,150, or 100 more thall a. year ago I when a. record number of 9l11s was Introduced. In the Sena.te, secre-I u.ry WUliam RJ.ng estimated th!'Jt last year's total of 2,588 would be exc*ded 11.150 Py a.bclUt'100. lIes.rlng Stressed Need Inttoduclng the Demooratic' meB.5ure to broaden medical andl dental care in rural areas were Sena.tor John T. MoKenhan of Utica. and Assemblyman James J. Lyons of Sullivan. The need for greater medical service in sparsely populated areas was brought out at a hearing spon- sored by the D,emooratio party last December, with the result tha.t the u\J-gtate legislatora were assIgned the task of devisinl:' a solution. ,Senator MaoNell Mitchell of Manhatta.n and Assemblyman D. :M:allory Stephens of Brewster ill- traduced companion bills today to make the Port of New 'York Au, thority suable. The measure B.ims to overcome one of the chief trou- bles cited by leglslators'in demand- ing an investIgation of the Port Authority. Before' the blll can be· come operative lln identical meas- ure must be approved Py the New Jersey Legislature, which set up the authority jointly wiill New York state. The blll to strip the Port Au- thority of Its immunity from auit was drafted by the Port Authority but was considerably pruned ba- fore the Republioan leaders would agree to I~ Introduction. ' One provision deleted would have exempted the officers of the Port Authority from sult and made the Authority alone suable. As- semblyman Nathan LEUlhln Bronx Democrat, who sppnsored ~ reso- lution for a legislative .inquiry of the Authority earlier in the session protested the exemption of officers: Hl,l{hllr PenaltIes Asked Another provision, deelgned to ellminate nllisance actions by minority bondholders, would pre- vent Injunction proceedings unless first approved by the Attorney Generals of New York and New .Jersey. • A seCOnd bill il\trodUOed at the Te!luest of the Authority would in. crease'the penalties for violating regulations With respect to the transportation 'of explosives anroVislons of the proposed state- wide bUilding code. 'rhe bill has been requested by Mayor O~Dwyer. Emergency standby legislation !letting up a Long Island rapid' transit authority to operate the Long' Island Rail' Road was intro- duced by Senator Seymour Hal- pern and Assemblyman Fred Prel- ler, Queens Republicans. Opposed baaically to Govern. ment in bUSiness, the sponsors emphasized that the authority pro- paged, would not' be tax exempt. Th,e legislators asserted that the raUroad management had proved lts' \na.billty to cope with ,the Long Island transportation problem. A. :bill propo~ing a general over- hauling of the state fonnula for reimbursing cities and other sub- diVisions for wel£are expenditures Was submitted by ASSemblyman Harold C. Ostertag'. Atticll, Repub· Iican. The blllis not to be pressed for p'B.lIsage thl8 yeRr, but will serve as B. bB.5ls for studiea to be made during'the legls1ey Legislature removing .the Port of New York. Authority's im- munity'.to certain types of law-I suits Was temporarily staned last; week, . the ·contJ.:oVersy over the move continued unabated, With pressure for its passage contum- ing. A companion measure, passed in New York, is awaiting the Gov- ernor's signature. In' 'i'renton the New Jersey 1nea.sUre appeared to be blocked by the opposition of two Republican Senators, Kenneth 9. Hand of Union County and Alfred C. Clapp of EsseX, who in effect prevented the bill's being reported to the Senate floor. The principal agitation against the measure, howe vel', has stemmed from Meyer Ellenstein, Newark director of' Revenue- and Finance who has denounced it as "a trick bill" that would "sanction the immunity" of the Port Author- ity and. "establish it by legislative fiat." Setting forth his opposition in a letter to all members of the i Legislature, Mr. Ellenstein said Ithat the bill, sponsored by Sena- Itor David Van Alstyne Jr., Repub- IlicRn of Bergen County, fl.nd I ba~ked 'by the authority; would permit only actions to enforce pay- ment of bonds and damages re- suIting. from accidents. He held that it would outlaw suits for defaults and other lia- bilities under existing contracts, claims which have already ac- crued, reCrogiam, with soine changes. Mr. Dewey said a reduction of 27 per cent in juvenile delinquency cases had been reported as a resUlt of the progrs.rn. The bill provides for tranMer of the administrative functions of the commission to its executive d1rec.. tor, leaving the commission free for poJioymaking. It provides th'lt . the commission may establish youth' service projects for the prevention I of youth delinquency. I Do~ License .F~e. Raised Cost of dog licenses in New York City is incr~a.sed to $3 for both originaUicenses and"reneWals under another" bill ·signeq. Hereto- fore original ).icenses have cost $2 and renewals' $1. Upstate, dog li- censes cost from' ;2.50 to.< $5. per year. . .'. The additional revenue from New York City licenses will go to the American' Society fOr the Pre- vention of Cruelty. to Animals, which takes care of s.trl).y dogs for the eity. '. The bill origln~IlY· provided for annual vacci!J.!ltion of dogs in New York City, but this provision was stricken out· to insure legislative approval for the high license fees. There are an estimated 300,000 dogs in New York City. .Governor pewey signed a bill permitting th~' use of state high- ways by heavy. farm· equipment up to thirteen feet in'· Width, under conditions consistent With highway safety and Without special pennit. Such movements are limited on weekends and holidays when high- way traffic is .hea,vy• ..Mr. Dewey also signed' a bill creating in the Department. of Mental Hygiene an eleven-member cOUlicil, at least sill: of whom must be physicians. to advIse the com- missioner of mental· hygiene pro~ lems. The members will receive $1,500 a year and, expenses•. The . Governor approved the $1,900",955· .. supplemental bUdget bilf, which also transfers to the capital construction fund $86.900,- 000, of which $77.000,000 is bond moneys, for subways, parkways and grade·crossing elimination. Port Authority Bill Signell Gover:hor Dewey also signed a l bill making the New York Port I Authority liable, to suit in certam I cases, provided New' Jor'!ey enacts; a. la.w having an identical effect.' I Recent reports from the :New' Jersey LegiSlature indicatedthat~ the bill there m8.Y be killed as a I result of opposition from Newark and Elizabeth. . The measure was sponsored by the Port Authority in both the New Jersey and New York Legis- latures. It carned out part Of the compromise that Governor Dewey THIS DOCUMENT HAS BEEN ADDED BY NY LEGISLATIVE SERVICE, INC. IT IS NOT CONTAINED IN THE GOVERNMENT FILE, HOWEVER, WE FEEL THAT IT MAY BE HELPFUL. ~bt.~~\ul.lork Ithn~~ Published: April 2, 1950 Copyright © The New York Times