Matter of New York City Asbestos Litig. (2013)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, May 28, 2013).

Mary Andrucki and her husband sued the Port Authority of New York and New Jersey, among others. He was a sheet metal worker who in 1971 and 1972 worked on building the World Trade Center, where he believed he breathed asbestos fibers. He was diagnosed with malignant mesothelioma in April 2010. The couple filed a notice of claim on October 4, 2010, and served the complaint on November 12, 2010. He died on November 27, 2010. The trial court entered a judgment awarding plaintiffs damages. The Appellate Division reversed. The statute under which the Port Authority consents to suit requires a notice of claim at least 60 days before suit begins. The complaint was served too early, so the court lacked subject matter jurisdiction. New York strictly enforces this requirement, unlike New Jersey courts, which accept substantial compliance. The original notice covered injury, not death, so a new notice was needed for the wrongful death and survival claims. The court noted plaintiffs could still ask for leave to serve a new notice and start a new suit.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: May 28, 2013
• Citation: 106 A.D.3d 617
• Stage: Appeal from other
• State: New York

Outcome. The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.

What the court held. Compliance with the 60-day pre-suit notice of claim requirement in the Port Authority's suability statute is a mandatory jurisdictional condition that is strictly construed, with no substantial compliance exception, so a prematurely served complaint cannot confer jurisdiction.

Issues decided: Wrongful Death and Survival, Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• plaintiffs' decedent (husband of Mary Andrucki): mesothelioma; died

The defendants

• Port Authority of New York and New Jersey (premises owner)
• Aluminum Company of America

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Matter of New York City Asbestos Litig. (March 23, 1993). The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.
• Matter of New York City Asbestos Litig. (October 2, 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's appeal.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (November 26, 2013). The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (November 20, 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 21, 2021). The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.

Later decisions citing this one

2 later decisions in our library cite this one:

• Mtr OF Nyc Asbestos Litig. (New York Court of Appeals, 2014). The Court of Appeals reversed the Appellate Division's order, holding the Andruckis' personal injury notice of claim was sufficient for the wrongful death and survivorship claims against the Port Authority, and remitted the case to the Appellate Division for undecided issues.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

106 A.D.3d 617 (2013)

966 N.Y.S.2d 393

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

MARY ANDRUCKI et al., Respondents,

v.

ALUMINUM COMPANY OF AMERICA et al., Defendants, and

PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Appellant.

10070, 190377/10.

Decided May 28, 2013.

Appellate Division of the Supreme Court of New York, First Department.

Concur — Mazzarelli, J.P., Saxe, Moskowitz and Manzanet-Daniels, JJ.

Appeal from the Supreme Court, New York County (Martin Shulman, J.).

Judgment entered January 30, 2012, awarding plaintiffs damages, unanimously reversed, on the law, without costs, the judgment vacated, plaintiffs' motion for a default judgment against defendant Port Authority of New York and New Jersey denied, and defendant's motion to dismiss the complaint for lack of subject matter jurisdiction granted. The Clerk is directed to enter judgment accordingly. In 1971 and 1972, plaintiffs' decedent, a sheet metal worker, worked on the construction of defendant Port Authority's World Trade Center, where he believed he was exposed to asbestos and inhaled fibers. He was diagnosed with malignant mesothelioma in or about April 2010. On October 4, 2010, he and his wife filed a notice of claim against defendant for the injuries he sustained, and on November 12, 2010, they served the complaint. On November 27, 2010, decedent died. Although plaintiffs' counsel should have been aware of the time requirements in the applicable statute, the service of the complaint was premature, resulting in a lack of subject matter jurisdiction over the Port Authority (see McKinney's Uncons Laws of NY § 7107 [requiring service of a notice of claim at least 60 days before commencement of the action]; see e.g. Lyons v Port Auth. of N.Y. & N.J., 228 AD2d [*618] 250 [1st Dept 1996]; Ofulue v Port Auth. of N.Y. & N.J., 307 AD2d 258 [2d Dept 2003]; see also Campbell v City of New York, 4 NY3d 200, 204 [2005]). 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 Authority gave its consent to suit in actions or proceedings accruing after June 13, 1951 upon compliance with certain jurisdictional conditions precedent. The Port Authority grants such consent "upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced" (Uncons Laws § 7107). We are, of course, required to apply New York law. However, we note that New Jersey courts have held "substantial compliance" with the notice requirements to be sufficient 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 et seq.), 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 substantial compliance based on the plaintiff's immediate reporting of the accident together with the parties' subsequent correspondence]; Atlantic Aviation Corp. v Port of N.Y. Auth., 66 NJ Super 15, 168 A2d 262 [1961] [finding substantial compliance where the 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 the invoices the counterclaimant submitted to the Port Authority did not constitute substantial compliance]). In New York, by contrast, compliance with the notice requirement is "mandatory" and "must be strictly construed" (Lyons, 228 AD2d at 251). Plaintiffs argue that despite their initial failure to obtain subject matter jurisdiction over defendant, they nonetheless obtained subject matter jurisdiction through service of the amended complaint after the decedent's death. This argument is unavailing. The initial notice of claim specifically stated that it was for personal injury arising from the asbestos 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 of claim under General Municipal Law § 50-e, that notice of injury placed a municipality on notice of a [*619] 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. General Municipal Law § 50-e contains a "substantial compliance" provision, permitting courts 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 substantial compliance 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 new notice of claim concerning the wrongful death and survivorship actions. We further note that a limited exception to the notice provisions applies: "[W]here a person entitled to make a claim dies and by reason of his death no notice of claim is filed or suit, action or proceeding commenced within the time specified in section seven hereof then any court in which such suit, action or proceeding may be brought may in its discretion grant leave to serve the notice of claim and to commence the suit, action or proceeding within a reasonable time but in any event within three years after the cause of action accrued. Application for such leave must be made upon an affidavit showing the particular facts which caused the delay and shall be accompanied by a copy of the proposed notice of claim if such notice has not been served, and such application shall be made only upon notice to the port authority" (Uncons Laws § 7108). Accordingly, because plaintiffs' cause of action accrued in November 2010, plaintiffs may, as of the date of this decision, still move for leave to serve a new notice of claim and commence a new suit against the Port Authority.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites