Pogacnik v. AO Smith Water Prods. Co. (2018)

Our plain-English summary of Pogacnik v. AO Smith Water Prods. Co. (New York Supreme Court, April 23, 2018).

Tatjana Pogacnik sued, as executrix of her husband's estate and individually, over the injuries and death of Leon Pogacnik, an architect from 1969 to 1983. She claimed he developed mesothelioma from asbestos exposure. Her notice of claim to the Port Authority of New York & New Jersey said he was exposed while working at JFK Airport around 1972-1973. At his deposition he said he worked on two JFK projects, a Northwest Airlines building and a Pan American terminal, in the late 1970s. The Port Authority moved to dismiss, arguing the court lacked jurisdiction over exposure not described in the notice. The court held the notice of claim is jurisdictional and strictly construed. "Approximately" could stretch to 1974 and 1975 but not to 1976-1979. It was immaterial whether the Port Authority was prejudiced. The court dismissed claims based on 1976-1979 exposure and denied the motion for exposure from 1972 to 1975.

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
• Decided: April 23, 2018
• Citation: 2018 NY Slip Op 31160(U)
• Docket: Docket No. 190340/2015
• Stage: Motion to dismiss
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted the Port Authority's motion to dismiss in part, dismissing claims based on exposure at JFK Airport in 1976-1979 because the notice of claim did not cover them, and denied it for exposure in 1972-1975.

What the court held. A notice of claim against the Port Authority is jurisdictional and strictly construed; using "approximately" for the exposure dates cannot stretch the claim to cover years several years beyond the stated period, and lack of prejudice to the Port Authority is immaterial.

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

The people and their exposure

• Leon B. Pogacnik: mesothelioma; died

The defendants

• Port Authority of New York & New Jersey (premises owner)
• A.O. Smith Water Products Co.

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.

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.

2018 NY Slip Op 31160(U)

TATJANA POGACNIK, as Executrix of the Estate of LEON B. POGACNIK, and TATJANA

POGACNIK, Individually, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

Docket No. 190340/2015.

April 23, 2018.

Supreme Court, New York County.

DECISION AND ORDER

LUCY BILLINGS, Judge.

I. BACKGROUND

Plaintiff seeks damages for the deceased Leon Pogacnik's injuries and death from exposure to materials and equipment containing asbestos during his employment as an architect from 1969 to 1983. Plaintiff filed a timely notice of claim with defendant Port Authority of New York & New Jersey October 27, 2015, claiming that Pogacnik developed mesothelioma due to his exposure to asbestos while working at John. F. Kennedy (JFK) Airport as an architect from "approximately 1972-1973." Aff. of Marshall S. Turner Ex. A, at 1. Plaintiff's chart of Pogacnik's history of employers and jobsites, an exhibit to the complaint, lists work on two JFK Airport projects and three other projects while employed by Eliot Noyes Associates from 1973 through 1982, but not in 1972. Pogacnik later testified at his deposition, in which the Port Authority participated, that he worked at JFK Airport on two projects: a Northwest Airlines administration building during the late 1970s for six to nine months, and the Pan American Airways terminal during the late 1970s for five to seven months. Defendant Port Authority now moves to dismiss plaintiff's claims against it, maintaining that the court lacks subject matter jurisdiction over the action against the Port Authority because plaintiff's notice of claim failed to allege that Pogacnik was exposed to asbestos at JFK Airport during the late 1970s as plaintiff now claims in this action. C.P.L.R. § 3211(a)(2).

II. THE PORT AUTHORITY'S MOTION

Plaintiff was required to serve the Port Authority with a notice of claim setting forth "the time when, the place where and the manner in which the claim arose." N.Y. McKinney's Unconsol. Laws § 7108. The requirement for a notice of claim is jurisdictional, Belpasso v. Port Auth. of N.Y. & N.J., 103 A.D.3d 562, 562 (1st Dep't 2013); City of New York v. Port Auth. of N.Y. & N.J., 284 A.D.2d 195, 195 (1st Dep't 2001); Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d 250, 251 (1st Dep't 1996); Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 98 (1st Dep't 1984), and must be strictly construed. Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d at 251; Luciano v. Fanberg Realty Co., 102 A.D.2d at 98. The specificity required in a notice of claim is to allow the Port Authority the opportunity to investigate and ascertain the scope of the potential claim. In re New York City Asbestos Litig., 24 N.Y.3d 275, 282 (2014). See Brown v. City of New York, 95 N.Y.2d 389, 392 (2000); Ayers v. Mohan, 145 A.D.3d 553, 555 (1st Dep't 2016); Person v. New York City Hous. Auth., 129 A.D.3d 595, 596 (1st Dep't 2015). Plaintiff's notice of claim satisfied the statutory requirements as it specified that Pogacnik developed mesothelioma as a result of his exposure to asbestos while working at JFK Airport from approximately 1972 to 1973. N.Y. McKinney's Unconsol. Laws §§ 7101, 7108. Plaintiff's notice of claim thus confers subject matter jurisdiction over her claims against the Port Authority arising from Pogacnik's exposure to asbestos while working at JFK Airport during approximately 1972-1973. Plaintiff's notice of claim does not, however, encompass claims arising from Pogacnik's exposure to asbestos while working at JFK Airport during the late 1970s. Plaintiff insists that Pogacnik's testimony that he worked at JFK Airport during the late 1970s merely amplifies her notice of claim to cover any exposure extending through 1979, well beyond the notice of claim's

specification of exposure to asbestos in "approximately 1972-73." Turner Aff. Ex. A, at 1. See DaSilva v. C & E Ventures, Inc., 83 A.D.3d 551, 551 (1st Dep't 2011). Yet Pogacnik testified that the two JFK Airport projects lasted, at most, a total of 16 months, so that Pogacnik could not possibly have been exposed to asbestos continuously from 1973 into 1975 or the "late '70s." Aff. of Jason P. Weinstein Ex. 1, at 236, 245. Even if 1972-73 is an approximation, and Pogacnik worked at JFK Airport beginning in 1974 rather than 1973, his exposure would have ended in 1975 at the latest. Plaintiff thus seeks to add an additional exposure period during the late 1970s or change the exposure period altogether from 1972 through 1973 to the late 1970s in her notice of claim.

Plaintiff may not simply use "approximately" in the notice of claim to amplify the notice of claim to include the late 1970s and bring any exposure in the late 1970s under the ambit of the notice of claim. "Approximately" reasonably may be construed to include 1974 and 1975, but not to include the years of the late 1970s, 1976-1979. Allowing plaintiff to use "approximately" to add three to six years to the exposure originally claimed would defeat the notice of claim's purpose of enabling the Port Authority to ascertain the scope of the claim and investigate it. In re New York City Asbestos Litig., 24 N.Y.3d at 282. See Brown v. City of New York, 95 N.Y.2d at 392; Ayers v. Mohan, 145 A.D.3d at 555; Person v. New York City Hous. Auth., 129 A.D.3d 596. Even if the Port Authority suffered no prejudice from plaintiff's omission of Pogacnik's exposure in the late 1970s in the notice of claim, such a fact is immaterial. Lyons v. Port Auth. of N.Y. & N.J., 228 A.D.2d at 251; Luciano v. Fanberg Realty Co., 102 A.D.2d at 98.

III. CONCLUSION

Since plaintiff's notice of claim does not encompass Pogacnik's exposure from 1976 to 1979, the notice of claim does not confer subject matter jurisdiction over any claim arising from Pogacnik's exposure during those years. Insofar as plaintiff's claims arise from Pogacnik's exposure to asbestos at JFK Airport during 1972 to 1975, however, the court denies defendant Port Authority of New York & New Jersey's motion to dismiss the claims against the Port Authority. C.P.L.R. § 3211(a)(2).

Sources

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