| Matter of New York City Asbestos Litig. |
| 2013 NY Slip Op 03766 [106 AD3d 617] |
| May 28, 2013 |
| Appellate Division, First Department |
| In the Matter of New York City Asbestos Litigation. MaryAndrucki et al., Respondents, v Aluminum Company of America et al.,Defendants, and Port Authority of New York and New Jersey,Appellant. |
—[*1]Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), forrespondents.
Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January30, 2012, awarding plaintiffs damages, unanimously reversed, on the law, without costs,the judgment vacated, plaintiffs' motion for a default judgment against defendant PortAuthority of New York and New Jersey denied, and defendant's motion to dismiss thecomplaint for lack of subject matter jurisdiction granted. The Clerk is directed to enterjudgment accordingly.
In 1971 and 1972, plaintiffs' decedent, a sheet metal worker, worked on theconstruction of defendant Port Authority's World Trade Center, where he believed hewas exposed to asbestos and inhaled fibers. He was diagnosed with malignantmesothelioma in or about April 2010. On October 4, 2010, he and his wife filed a noticeof claim against defendant for the injuries he sustained, and on November 12, 2010, theyserved the complaint. On November 27, 2010, decedent died. Although plaintiffs'counsel should have been aware of the time requirements in the applicable statute, theservice of the complaint was premature, resulting in a lack of subject matter jurisdictionover the Port Authority (see McKinney's Uncons Laws of NY § 7107[requiring service of a notice of claim at least 60 days before commencement of theaction]; see e.g. Lyons v Port Auth. of N.Y. & N.J., 228 AD2d 250 [1st Dept1996]; Ofulue v Port Auth. of N.Y. & N.J., 307 AD2d 258 [2d Dept 2003]; see also Campbell v City of NewYork, 4 NY3d 200, 204 [2005]).
By concurrent legislation of the States of New York and New Jersey (Uncons Laws§ 7101 et seq.; NJ Stat Ann 32:1-157 et seq.), the Port Authoritygave its consent to suit in actions or proceedings accruing after June 13, 1951 uponcompliance with certain jurisdictional conditions precedent. The Port Authority grantssuch consent "upon the condition that any suit, action or proceeding prosecuted [*2]or maintained under this act shall be commenced withinone year after the cause of action therefor shall have accrued, and upon the furthercondition that in the case of any suit, action or proceeding for the recovery or payment ofmoney, prosecuted or maintained under this act, a notice of claim shall have been servedupon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty daysbefore such suit, action or proceeding is commenced" (Uncons Laws § 7107).
We are, of course, required to apply New York law. However, we note that NewJersey courts have held "substantial compliance" with the notice requirements to besufficient for instituting an action against the Port Authority. Thus, although both states'statutes are the same (Uncons Laws 7101 et seq.; NJ Stat Ann 32:1-157 etseq.), New Jersey courts have liberally construed the notice requirement (see e.g.Zamel v Port of N.Y. Auth., 56 NJ 1, 264 A2d 201 [1970] [finding substantialcompliance based on the plaintiff's immediate reporting of the accident together with theparties' subsequent correspondence]; Atlantic Aviation Corp. v Port of N.Y.Auth., 66 NJ Super 15, 168 A2d 262 [1961] [finding substantial compliance wherethe Port Authority acknowledged the plaintiff's claim]; cf. Santiago v New York &N.J. Port Auth., 429 NJ Super 150, 57 A3d 54 [2012]; Port Auth. of N.Y. & N.J.v Airport Auto Servs., Inc., 396 NJ Super 427, 934 A2d 665 [2007] [finding that theinvoices the counterclaimant submitted to the Port Authority did not constitutesubstantial compliance]). In New York, by contrast, compliance with the noticerequirement is "mandatory" and "must be strictly construed" (Lyons, 228 AD2dat 251).
Plaintiffs argue that despite their initial failure to obtain subject matter jurisdictionover defendant, they nonetheless obtained subject matter jurisdiction through service ofthe amended complaint after the decedent's death. This argument is unavailing. Theinitial notice of claim specifically stated that it was for personal injury arising from theasbestos exposure and not for the decedent's death, which had yet to occur.
As plaintiffs correctly note, courts in this state have held, in considering notices ofclaim under General Municipal Law § 50-e, that notice of injury placed amunicipality on notice of a plaintiff's subsequent death from that same injury (see e.g.Mingone v State of New York, 100 AD2d 897, 898 [2d Dept 1984]). However,these cases have no application to the Port Authority's suability statute. GeneralMunicipal Law § 50-e contains a "substantial compliance" provision, permittingcourts to consider whether a plaintiff has substantially complied with the statute's terms;the Port Authority's suability statute, on the other hand, contains no substantialcompliance provision (Uncons Laws §§ 7107, 7108; Port Auth. of N.Y.& N.J. v Barry, 15 Misc 3d 36, 38 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).Under these circumstances, plaintiffs should have served on the Port Authority a newnotice of claim concerning the wrongful death and survivorship actions.
We further note that a limited exception to the notice provisions applies: "[W]here aperson entitled to make a claim dies and by reason of his death no notice of claim is filedor suit, action or proceeding commenced within the time specified in section sevenhereof then any court in which such suit, action or proceeding may be brought may in itsdiscretion grant leave to serve the notice of claim and to commence the suit, action orproceeding within a reasonable time but [*3]in any eventwithin three years after the cause of action accrued. Application for such leave must bemade upon an affidavit showing the particular facts which caused the delay and shall beaccompanied by a copy of the proposed notice of claim if such notice has not beenserved, and such application shall be made only upon notice to the port authority"(Uncons Laws § 7108).
Accordingly, because plaintiffs' cause of action accrued in November 2010, plaintiffsmay, as of the date of this decision, still move for leave to serve a new notice of claimand commence a new suit against the Port Authority. Concur—Mazzarelli, J.P.,Saxe, Moskowitz and Manzanet-Daniels, JJ.