| Nash v Port Auth. of N.Y. & N.J. |
| 2013 NY Slip Op 00030 [102 AD3d 420] |
| January 8, 2013 |
| Appellate Division, First Department |
| Linda P. Nash, Appellant, v Port Authority of NewYork and New Jersey, Respondent. |
—[*1] Weil, Gotshal & Manges, LLP, New York (Howard B. Comet of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 15,2012, which granted defendant's motion to vacate the judgment, same court and Justice,entered January 15, 2010, in plaintiff's favor, affirmed, without costs.
In Matter of World TradeCtr. Bombing Litig. (17 NY3d 428, 455 [2011]), the Court of Appeals held thatthe doctrine of governmental immunity insulated the Port Authority from tortiousliability for injuries claimed in connection with the 1993 World Trade Center bombing.That case involved litigation by hundreds of plaintiffs who sued the Port Authority forinjuries incurred in the terrorist bombing. Most of the plaintiffs were represented bycounsel for a steering committee appointed by a trial court, but some plaintiffs, includingNash, had separate counsel. The cases were all consolidated for proceedings to determinethe Port Authority's alleged liability, and a joint liability trial of the consolidated cases,including the Nash case, resulted in a single verdict finding the Port Authorityliable for negligence.
This Court affirmed the trial court's order denying the Port Authority's motion to setaside the verdict, rejecting the Port Authority's governmental immunity argument (Nash v Port Auth. of N.Y. &N.J., 51 AD3d 337, 344 [1st Dept 2008]). The cases were then separated forindividual damages proceedings in the trial court. After a damages judgment was enteredin favor of Nash, the Port Authority appealed, and by order dated June 2, 2011, weaffirmed "insofar as appealed from as limited by the briefs, awarding postjudgmentinterest at the fixed rate of nine percent per annum" (Nash v Port Auth. of N.Y. & N.J., 85 AD3d 414, 414 [1stDept 2011]). Defendant did not seek leave to appeal from that order.
After a damages judgment was entered in favor of a different plaintiff, Ruiz,defendant sought leave to appeal to the Court of Appeals from the judgment of SupremeCourt pursuant to CPLR 5602 (a) (1) (ii), and the Court granted leave. The appealbrought up for review both the judgment in the Ruiz action and our prior order asto Ruiz (Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 441). TheCourt of Appeals reversed the judgment entered in favor of plaintiff Ruiz, as well as ourorder which had affirmed the trial court's denial of the Port Authority's motion to setaside the liability verdict.
Since the judgment in plaintiff's favor was based on an order that had been reversed,the [*2]trial court properly vacated the judgment(see CPLR 5015 [a] [5]; McMahon v City of New York, 105 AD2d 101[1st Dept 1984]). The dissent is correct that in McMahon, the order that wasvacated was subject to appeal, while the order here (the Nash judgment) was nolonger subject to appeal. Despite this difference in procedural posture of the two cases,we believe that the underlying reasoning expressed in McMahon applies here aswell. As in McMahon, since the final judgment in this case holds the defendantliable for "damages in a case in which, as a matter of law as established by the[Matter of World Trade Ctr. Bombing Litig.] decision . . . , the[defendant] should not be liable at all" (105 AD2d at 103), the judgment should bevacated. Regarding the Court of Appeals's statement in Matter of World Trade Ctr.Bombing Litig. that the Nash action is beyond the scope of that appeal (17NY3d at 441 n 7), this is simply an acknowledgment that while Nash was givenpermission to argue the appeal before the Court, her action was not being addressed bythe Court. It does not render the motion court's action in vacating Nash's judgmentimproper. The motion court did not abuse its discretion by vacating a final judgmentwhere the Court of Appeals had reversed "the interlocutory judgment of liability onwhich the final judgment was based" (McMahon at 102).Concur—Friedman, J.P., Abdus-Salaam and Román, JJ.
Acosta and Manzanet-Daniels, JJ., dissent in a memorandum by Manzanet-Daniels,J., as follows: The order of this Court, entered June 2, 2011, affirming the judgmententered by the trial court awarding plaintiff $4,463,856.89, plus interest, stands as a finaljudgment in plaintiff's favor which may not now be disturbed (Nash v Port Auth. of N.Y. &N.J., 85 AD3d 414 [2011]). I would accordingly find that the motion court erredin vacating plaintiff's judgment on the basis that she was bound by the Court of Appeals'determination in Matter ofWorld Trade Ctr. Bombing Litig. (17 NY3d 428, 455 [2011]). The Court ofAppeals itself stated that the Nash action was "beyond the scope of th[e][Ruiz] appeal," inasmuch as "[a] judgment in the Nash action was recentlyaffirmed by the Appellate Division" (id. at 441 n 7).
An explanation of the complex procedural history of this case is in order. In 1993,Nash commenced a personal injury action against the Port Authority of New York andNew Jersey in the Supreme Court, New York County. Meanwhile, hundreds of otheractions were commenced against the Port Authority in connection with the 1993bombing of the World Trade Center. These actions, including the Nash action,were consolidated into a single action for the purpose of determining liability (see Matter of World Trade Ctr.Bombing Litig., 3 Misc 3d 440, 442 [Sup Ct, NY County 2004]). Most of theplaintiffs were represented during the liability phase by counsel for a steering committeeappointed by the trial court (see id.; 17 NY3d at 439). Several plaintiffs,including Nash, retained separate counsel to represent them in the liability phase, as wellas in subsequent damages trials.
On October 26, 2005, the jury in World Trade Ctr. Bombing Litig. returned averdict as to liability, finding that the Port Authority's failure to maintain a secure andsafe premises, in light of known dangers, was a substantial factor in causing theplaintiffs' injuries. The Port Authority moved to set aside the verdict or, in the alternative,for a new trial (see Matter of World Trade Ctr. Bombing Litig., 2007 NY Slip Op34467[U] [Sup Ct, NY County 2007, Figueroa, J.]). The motion was denied and the PortAuthority appealed. This Court affirmed by order entered April 29, [*3]2008 (Nash v Port Auth. of N.Y. & N.J., 51 AD3d 337 [2008]).The Port Authority did not seek leave to appeal from the order, and instead permitted theparties to try their respective damages claims.
In early 2009, the damages trial in Nash resulted in a verdict, dated March 9,2009, in favor of Nash and against the Port Authority in the amount of $4,463,856.89,plus 9% interest. This Court affirmed by order entered June 2, 2011 (see Nash,85 AD3d 414 [2011]). The Port Authority did not seek leave to appeal to the Court ofAppeals from the order, which of course would have brought up for review not only theissue of damages, but any issue necessarily affecting the judgment, including the interimliability determination.
After a jury verdict was rendered on damages in the case of plaintiff Antonio Ruiz,the Port Authority elected to appeal that judgment directly to the Court of Appeals,bringing up for review the interim liability determination of this Court (World TradeCtr. Bombing Litig., 17 NY3d at 440-441 [henceforward herein, Ruiz or theRuiz appeal]).
The Port Authority did not believe Nash to be a party respondent to the Ruizappeal. Indeed, when plaintiff requested to be declared a respondent to the PortAuthority's appeal from Ruiz's final judgment, the Port Authority opposed the request,stating:
"[Ms. Nash] is not a respondent [on the Ruiz appeal] because the PortAuthority did not seek (and was not granted) leave to appeal from a judgment in favor ofMs. Nash—nor could it have, because Ms. Nash's case is currently pending beforethe Appellate Division. . . .
"The confusion as to Ms. Nash's status as a respondent appears to arise from themistaken impression that this is an appeal 'from the Appellate Division's April29, 2008, Nash decision.' . . . It is, in fact, an appeal fromthe final judgment in favor of Mr. Ruiz, entered in the Office of the County Clerk onJanuary 20, 2010. The appeal from that judgment brings up for review all intermediateorders necessarily affecting the judgment, CPLR 5501(a) (1), including, of course, theApril 2008 order holding the Port Authority liable for the bombing. However, the appealis not taken from that interlocutory April 2008 liability ruling itself. See CPLR5602(a) (ii) (authorizing appeal 'from a final judgment')."
Nash submitted a brief in the Ruiz appeal, and participated in the initial oralargument on June 1, 2011.
Meanwhile, the Port Authority having failed to appeal directly from this Court'sorder entered June 2, 2011, Nash's judgment became final and was beyond further reviewor interference. On or about July 18, 2011, Nash formally withdrew from participating inargument of Ruiz's appeal.
At the August 24, 2011 reargument of the Ruiz appeal, Judge Ciparickinquired of Port Authority's counsel, Mr. Rothman, whether a reversal of the liabilityfinding would "unravel" final dispositions that had been previously made. Mr. Rothmanreplied "no." When Judge Ciparick further inquired if a reversal of the liability findingwould affect "future cases . . . that are still in the pipeline," Mr. Rothmanresponded that it "would [a]ffect cases that are still in the pipeline."[*4]
Nash's case, of course, was not still "in thepipeline"; the time to seek reargument and/or leave to appeal from the order of thisCourt, entered June 2, 2011, had already expired. Indeed, the Court of Appeals' opinionin Ruiz expressly noted that Nash, while a plaintiff in another action, hadrequested, and been granted, permission "to present argument" on the Ruizappeal (World Trade Ctr. Bombing Litig., 17 NY3d at 441 n 7). The Court ofAppeals noted, however, that the Nash action was "beyond the scope of [theRuiz] appeal," as "[a] judgment in the Nash action was recently affirmed by theAppellate Division" (id.).
On July 20, 2011, the Port Authority moved in the Court of Appeals for a declarationthat an automatic stay as to Nash was "in effect or, alternatively, for a discretionary stay"(Matter of World Trade Ctr. Bombing Litig., 17 NY3d 856, 856 [2011]). Themotion was of course premised on the contention that Nash was a party to theRuiz appeal.
By order entered September 22, 2011, the Court of Appeals unanimously"dismissed" the "stay" motion on the ground that it lacked "jurisdiction to entertain [it],"inasmuch as "no appeal or motion for leave to appeal in the Nash action [was] pendingbefore the Court of Appeals (see CPLR 5519)" (id.).
Nash's judgment having become final, the Port Authority cannot avoid itsenforcement (see Lacks v Lacks, 41 NY2d 71, 73, 77 [1976] ["(T)he judgmentwas affirmed by the Appellate Division on October 26, 1972. Leave to appeal to theCourt of Appeals was denied by both the Appellate Division and this (C)ourt. The finaljudgment was thus beyond further review"]). The Court has stated that to vacate a finaljudgment after the right to appeal had been exhausted "would be to underminesignificantly the doctrine of res judicata, and to eliminate the certainty andfinality in the law and in litigation which the doctrine is designed to protect" (id.at 77).
The Port Authority made a strategic decision not to appeal either the liability or thedamages determination in Nash, instead prosecuting the Ruiz case. ThePort Authority thereafter abandoned any claim that it was not liable to Nash, andrepresented to the Court of Appeals that a reversal in Ruiz would not affect caseslike Nash's that had been finally determined. Having failed to seek leave to appeal fromNash's affirmed final judgment, the Port of Authority cannot maintain that Nash's casewas still "in the pipeline" such that Nash was bound by the Court of Appeals' subsequentdetermination in the Ruiz case.
The Port Authority asserts that Nash's submission of a brief in Ruiz andparticipation in oral argument, at least initially, render her bound by the outcome in thatcase, notwithstanding the fact that the decision in Ruiz was renderedsubsequently to this Court's affirmance of Nash's final judgment. The problem with thisargument is that at the time the decision in Ruiz was rendered, the judgment inNash's favor in the Appellate Division case was already final and thus beyond furtherreview or collateral attack (see Lacks, 41 NY2d at 73, 77). Thus, the Court ofAppeals had no jurisdiction to make a pronouncement as to the outcome of Nash's case,as the Court itself expressly recognized in stating that the Nash action was"beyond the scope of th[e] [Ruiz] appeal," inasmuch as "[a] judgment in theNash action was recently affirmed by the Appellate Division," and in dismissing the PortAuthority's motion for a stay on the basis of "lack of jurisdiction." As Professor Siegelnotes in the Practice Commentaries accompanying CPLR 5513, "[t]he time in which toappeal or to move for leave to appeal if leave is necessary is one of the most rigid in allof procedure. Its passing without the proper step being taken forfeits the appeal and putsan end to the matter . . . In fact, the passing of the period is deemed togo to the jurisdiction of the court—to its subject matter jurisdiction" (David D.Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC5513:1 [emphasis added]).[*5]
McMahon v City of New York (105AD2d 101 [1984]), relied on by the Port Authority, is distinguishable and in factsupports Nash. In McMahon, the Court of Appeals had reversed an underlyingliability determination in O'Connor v City of New York (58 NY2d 184 [1983])while an appeal from McMahon's separate damages case was still pending in theAppellate Division. When the Court of Appeals reversed the liability order in theO'Connor case, the City moved for reargument of our prior affirmance onliability and for an extension of time to perfect the damages appeal in McMahon's case.We denied the motion without prejudice to applications for appropriatepostjudgment relief in the Supreme Court in light of the Court of Appeals' reversal of theinterlocutory liability determination.
Here, in contradistinction, Nash's appeal before our Court had been submitted,argued, decided, and the time to move for reargument and/or leave to appeal hadalready expired prior to the Court of Appeals' determination in Ruiz. Nash'scase, unlike McMahon's was not "in the pipeline." In McMahon, we noted "at thetime the supervening judgment of the highest court was rendered, a direct appeal wasstill pending from the final judgment in the other appeal . . . and theissues were still subject to review on that appeal" (105 AD2d at 106 [emphasisadded]). Since the time to appeal from the order finally determining the rights of theparties in Nash had already expired prior to the time the Court of Appealsdecided Ruiz, Nash's judgment could no longer be disturbed. I wouldaccordingly hold that the motion court improvidently exercised its discretion in grantingthe motion to vacate the judgment.