Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig., 2015)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, January 15, 2015).

Mary Andrucki, as administratrix of the estate of George P. Andrucki, sued the Port Authority of New York and New Jersey and others in a mesothelioma case that was joined for trial with other mesothelioma actions. The opinion does not describe his work or exposure. The Port Authority moved for summary judgment on the day trial was set, arguing that plaintiffs should have served a new notice of claim after the decedent died, so the court lacked jurisdiction. Trial began without the Port Authority, which did not appear while its motion was pending. The trial court denied the motion, found the Port Authority in default, and entered a $2,500,000 judgment plus interest against it based on testimony already in the record. The First Department first reversed and dismissed for lack of jurisdiction, but the Court of Appeals reversed that ruling and sent the case back for the remaining issues. On remittitur, the First Department affirmed. It held that the trial court could assess damages without an inquest because CPLR 3215(g)(1) allows this when a defendant fails to proceed to trial of an action reached and called for trial.

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: January 15, 2015
• Citation: 2015 NY Slip Op 438
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. Under CPLR 3215(g)(1), a court may dispense with notice and a hearing on damages where the defendant failed to proceed to trial of an action reached and called for trial, so damages may be assessed without an inquest.

Issues decided: Compensatory Damages, Trial Procedure and Discovery.

The people and their exposure

• George P. Andrucki: mesothelioma; died

The defendants

• Port Authority of New York and New Jersey
• 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.
• Matter of New York City Asbestos Litig. (May 28, 2013). 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.
• 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.
• 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2013). 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.

Amounts in the opinion

• $2,500,000 plus interest (total)

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.

2015 NY Slip Op 00438

IN RE NEW YORK CITY ASBESTOS LITIGATION.

MARY ANDRUCKI AS ADMINISTRATRIX FOR THE ESTATE OF GEORGE P. ANDRUCKI, ET AL.,

Plaintiffs-Respondents,

ALUMINUM COMPANY OF AMERICA, ET AL., Defendants,

PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Appellant.

10070, 190377/10.

Decided January 15, 2015.

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

Segal McCambridge Singer & Mahoney, Ltd., New York (Christian H. Gannon of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), for respondent.

Before: Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, JJ.

Upon remittitur from the Court of Appeals for consideration of issues raised by not determined on appeal to this Court (___ NY3d ___ [2014], 2014 NY Slip Op 08053) judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 30, 2012, awarding plaintiffs damages, unanimously affirmed, without costs.

This matter was joined for trial with several other mesothelioma actions and scheduled for trial on July 11, 2011. By order to show cause and emergency application dated July 11, 2011, defendant Port Authority of New York and New Jersey sought summary judgment dismissing all the claims and cross claims against it, arguing that plaintiffs had failed to fulfill the conditions precedent to bringing the action because they did not serve a new notice of claim upon the Port Authority when plaintiff's decedent died. As a result, the Port Authority asserted, the court lacked subject matter jurisdiction. Jury selection proceeded as scheduled and the trial began on July 26, 2011. However, the Port Authority did not appear because its summary judgment motion was still pending and it believed that the court lacked subject matter jurisdiction. On September 7, 2011, Supreme Court denied the Port Authority's motion for summary judgment, finding that plaintiffs had complied with all the necessary conditions precedent to suit and that the court thus had proper subject matter jurisdiction over the Port Authority. Further, the court found that the Port Authority had not interposed an answer to the amended complaint and was therefore in default.

In August 2011, plaintiffs moved for a default judgment and assessment of damages against the Port Authority. In so doing, plaintiffs asked the court to rely on the testimony already in the record. The trial court granted the motion, finding, among other things, that the Port Authority's failure to appear at trial was a sufficient ground for a default judgment. The Clerk entered judgment in plaintiffs' favor and against the Port Authority in the amount of $2,500,000 plus interest. On a prior appeal, we reversed, vacated the judgment, denied plaintiff's motion for a default judgment against the Port Authority, and dismissed the complaint, finding that, in fact, the trial court lacked subject matter jurisdiction because the death of plaintiff's decedent required service of a new notice of claim upon the Port Authority (106 AD3d 617 [2013]). The Court of Appeals reversed our order and remitted the case to this Court "for consideration of issues raised but not determined" (___ NY3d ___, 2014 NY Slip Op 08053).

The trial court properly awarded damages to plaintiffs without the benefit of an inquest. Under CPLR 3215(b), the trial court is permitted to make an assessment of damages without a jury, and although a defaulting defendant is ordinarily entitled to participate in an inquest on damages, a court may, under CPLR 3215(g)(1), "dispense with the requirement of notice and a hearing where the defendant has failed to proceed to the trial of an action reached and called for trial." THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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