Esposito v Port Auth. of N.Y. & N.J.

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Esposito v Port Auth. of N.Y. & N.J. 2012 NY Slip Op 32219(U) August 10, 2012 Supreme Court, New York County Docket Number: 100051/1994 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF N W YORK NEW YORK COUNTY -wid-. PRESENT: PART Jurtlce - Index Number : 10005111Q84 ESPOSITO, SUSAN VS UIMX NO. . DATE PORT AUTHORITY SEQUENCE NUMBER : 020 - v MO'TIOW 8W. NO. RENEWAL I Th.following p p n numbond 1 to ma, # o t h of MotlonlOrdsr to Show Caw0 Amw*rlng Amdavlb - Exhlbltm ,were rC#l on t h motion totfor h -AfRdavtt8 - ExhlblG INo(.). IW.). IWN. Raplying Affidrvftr Upon ths brogolng papam, It I t ordered that thb motlon k B FILED NEW YORK COUNTY CLERK'S OFFICE c J.8.C. ..................................................................... 2. CHECK A8 APPROPRIATE: ............. ..MOTION IS: 9. CHECK IF APPROPRIATE: ................................................ I . CHECK ONE: K C A S E DISPOSED . WaRANTED 8EHLE ORDRR 00 NOT POST DENIED ORANTED IN PART O m 8UBMIT ORDER 0FIDUCIARY APPOINTMENT REFEMEWE [* 2] 4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SUSAN ESPOSITO, Plaintiff, Index No. 100051/1994 DECISION AND ORDER -against- THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY FILED YORK, J.: Defendant, the Port Authority of New York and New Jersey ( Port Authority ) moves, pursuant to CPLR 2221, to renew its motion for summary judgment andor its motion to set aside the liability verdict in this action and dismiss the complaint of Susan Esposito C Esposito or Plaintiff ) on the ground that the decision of the Court of Appeals led to the change of law appliwble to this case. BACKGROUND Esposito wm injured in the evacuation of the World Trade Center ( WTC ) in the aftermath of the February 26,1993 terrorist attack. On. January 3,1994 she, together with more than 100 other plaintiffs, filed a single complaint against the Port Authority alleging that y[t]he ...explosion and fire were caused by reason of the negligence, carelessness and recklessness of the defendant, its agents, servants and/or employees, in the ownership, operation, management, cuntrol, maintenance, safe keeping and inspaction of the aforesaid premises. The twenty-eighth [* 3] cause of actioq in the complaint concerned compensation for Susan Esposito s injuries and expenses, evaluated at $750,000.00. In July 1994 Justice Sklar of the New York Supreme Court ordered that all 174 cmes wising from the 1993 attack which were filed in the state court be joined for discovery and trial on the issue of liability. A Steeriug Committee wm appointed to represent plaintiffs common mtercasts. After discovery was fmished, the Port Authority moved for summary judgment dismissing all the claims, arguing, among other matters, that it is entitled to governmental hnunity. The court ruled that the duty to provide security i the WTC, and to provide n nt, Nash v P a . of New Yo& and New Jersgy, 51 AD3d 337,339; 856 rJ,Y.S.2d583 rlst Dept.20081I. The individual cases proceed& to trial on damages. On J a n q 20,2010, plaintiff Antonio Ruiz w s awarded $824,1oO.06. Port Authority requested leave a The to appeal the judgment directly to the Court of Appeals pursuant to CPLR 5602(a)(l)(ii), bringing up for review the Appellate Division ruling upholding liability. On September 22,201 1 the Court of Appeals, in a four to three decision, reversed the Appellate Division ruling, holding that the Port Authority s provision of security at the WTC 2 [* 4] was a governmental function, and that tort claims against it arising out of the 1993 explosion are barred by governmental immunity. I13 re Wa& de Ctr, Worn . , 17 NY3d 428,933 N,Y.S.2d 164 [2011]. Ruiz s complaint wasi dismissed. In a letter addressed tQJustice Silver and at a conference in his chambers, Esposito s counsel argued that her claims are not foreclosed by the Court of Appeals decision, shce her injuries were caused not by the P r Authority s failure to provide adequate security or allocate ot police resources, but by its alleged negligence in failing to provide adequate backup lighting in its stairwells and have appropriate evacuation plans. He further contended that the Court of Appeals decision was particular to the plaintiff in that case. Defendant now moves to renew its prior motions fqr summary judgment andor to set wide the liability verdict and dismiss the complaint. DISCUSSION What the Port Authority requests this court to do, to set aside the liability verdict, was accomplished by the Court of Appeals decision. In the &&ruling, the First Department refused to set aside the jury verdict on liability, and the Court of Appeals reversed. This issue is moot. D f n a t ultimately seeks the dismissal of the complaint. The court will consider the alternative eedn request to renew defendant s motion for summaryjudgment on the ground that the Court of Appeals decision is a change in the law that would change the prior determination. (CPLR 2221(e)(2)). The disposition of this case depends an the interpretation of the breadth of the Court of Appeals decision and its consequences for the pending individual cases, given the procedural complexities of this action. 3 - - _ I [* 5] Individualized claims Esposito proposes her reading of Justice Sklm s order of 1994. She maintains that the Steering Committee set up in the order was to deal wt common issues of liability, and that ih some liability matters, peculiar to individual plaintiffs and groups of plaintiffs, were left out and preserved for individual trial (Zucker Aff, 77 4-5). In thc order Justice Sklar referred to issues of liability and other common issues. (Zuckw AfK, EA.A, 89). Liability w s a major common a issue in this litigation, and the Steering Committee represented plaintiffs on this issue at all stages, fiom discovery, to trial on liability, to appeal to the Court of Appeals. The wder envisioned that some plaintiffs might have individual or divergent positions, in which case their counsel could act separately and not be bound by the Committee s actions. (id, at 712). In the course of these proceedings the Committee argued on Esposito s behalf, and secured a ih favorable jury verdict on liability. She did not complement the initial comphint wt allegations d ih peculiar to her case. Her bills of particulars dealt o y wt her injuries and details of her medical treatment, not with an additional theory of liability to the effect that that defendant s acts and omissions during evacuation represent a separate instance of negligence (Silbert Reply Aff. Exbs. B-E). It is only after the Court of Appeqls issued its decision in September 201 1 that her lwyer raised particularized claims. To the extent that these claims may be separate, and based on an alternative theory of liability, they cannot be raised at this stage, long past the filing of the note of issue. m d a d v New York Citv Tr.Autk, 5 AD3d 255,256; 773 N.Y.S.2d 296 [lst Dept 20041;Ones Y Yick Mina Yip Real@. Inc., 258 AD2d 387,388; 685 N.Y.S.2d676 [lst Dept 19991. The trial on liability included plaintiffs whose circumstancts were different - some were tenants in the building, like Susan Espmito, others transient visitors, some incurred personal 4 [* 6] injuries, others economic darnages due to interruptions in business. In its motion to set aside the jucy verdict, the Port Authority contended that it should have been given an opporlxnity to oontest causation in relation to separate groups of plaintiffs who were similarly situated. In that case, its argument went, it could be found not liable to some of the plaintiffs. Justice Figueroa, refusing to set aside the verdict, reminded the defendant that, based on the agreement of the parties, liability had to be litigated a a c o m o n matter, independent of particular circumstances s of various plaintiffs. Esposito s current assertion that defendant may be additionally liable towards her, and potentially other plaintiffs injured during evacuation, contradicts the whole organizational setup of this litigation. The only individualized issues which remained after the trial on liability were damages. Breadth o the Port Authori& s governmental immuniy f Esposito s second argument in opposition to this motion is that the Court of Appeals did not provide the Port Authority absolute immunity fiom tort claims arising out of the 1993 attack, and it can still be found negligent. The Port Authority counters that the security rneasurw, for which the Court of Appeals held it protected by governmental immunity, include the evacuation plans and planning for how to m i t i life systems in the buildings in case of an emergency. anan Esposito characterizes these measures being a proper responsibility of a landlord, which is a proprietary, not a governmental function. The Court of Appeals used the record developed in the lower courts to present the facts of the case. In particular, it cited Justice Sklar s summary of plaintiffs claims: [Blased on ... allegations that the Port Authority was negligent with respect to security: in failing to adopt, implement, and follow the recommendations in the security reports; in failing to restrict public access to the parking levels; in failing to have an adequate security plan; in failing to provide an electronic security system; in failing to institute a m m d checkpoint at the garage; in failing to subject vehicles to inspection and to have security signs; in failing to have 5 [* 7] adequate security personnel; in failing to employ recording devices concerning vehicles, operators, occupants, and ptd&ans; and in failing to conduct studies of the possible results of a bombing of the complex. The actual list in Justice Sklar s decision is longer: The claims also are based on alleged failures with respect to the ventilation system,that is, in failing to have a proper and adequate regular and emergency ventilation system in c a ~ e fire and explosion. Plaintiffs also claim that the Port of Authority failed to provide adequate lighting, to use air-cooled emergency generators, and to have adequate communications and backup communicatioas systems. They further claim that the Port Authority failed to properly train and communicate wt the fire wardens, and train employees on proper evacuation ih procedures. e Ctr, -inn r i a , 3 Misc 3d 440,453; 776 N.Y.S.2d713 [Sup Ct, NY Cty 20041. These claims, which Esposito tries to present as not covered by the liability trial, were asserted from the beginning and were vigorously litigated. Justice Skl& referred to numerous security reports that considered the aftermath of a potential bombing and pointed to the WTC vulnerabilities. The Terrorist Planning Section warned that the underground public parking garage was highly vulnerable and, if attacked, could critically affect the WTC s hhstnacture. (id, 445). The Ofice of Special Planning predicted that a car bomb placed in the World Trade at Center parking area would affect [v]irtudly all ofthc important building systems, such as .power, water, heating, [and] cooling because those systems all were located in and around the parking areas. (id., 449). Another report, by Science Applications International Corporation, at found that a well-placed vehicle bomb in [the vehicle ramps] would likely damage at least half of the WTC s support services (fresh water, steam, cooling water, electrical and telephone) and recommended certain upgrades, including installing blast deflectors around critical SUP POI^ service components (water, electfical, phone) (id, at 450-45 1). It is clear fiom these extracts that the security experts considered effects of the attack as an integral part of their security assessments. They made concrete recommendatiom to mitigate 6 [* 8] the catastrophic effects of a blast in the mdtrgromcl garage. The Port Authority reacted to these recommendations as it did to almost all other professional advice related to security, qamely by fwding that to implement them would be too costly. The consequences followed. The explosion destroyed the communications system, the police area and operations control center, and vital utility system, including water and electrical, and fixe standpipes .. . Because of the 109s ofthe operations control center, the Port Authority lost the ability to communicate wt tenants and their employees in ih the complex, and to institute its emergency cvacuatiori procedures. (id., at 452-53) In reaching its determination that the Port Authority's actions are covered by governmental immunity,the Court of Appeals did not disturb the lower courts' factual fmdings. It arrived at a different legal conclusion on the issue of "whether the precise failures for which the Port Authority was found liable were governmental or proprietaq in nature." J,n re,World de Ctr, Bombing LitiK, 17 NY3d 428,447; 933 N.Y.S.2d 164 [2011] . The Court unambiguously ruled that claims of proprietary negligence are precluded by gbvernmental immunity, being tightly related to the provision of security to the gePeral public. While some of plaintiffs' claims may touch upon the proprietary obligations of a landlord, when scrutinizing the purported injury-causing acts or omissions they allude to lapses in adequately examining the risk and nature of terrorist attack and adopting specifically recommended security protocols to deter terrorist intrusion. These actions are not separable from the Port Authority's provision of security at the WTC. (id., at 447-48) I) [Tlhese failures lie, not w t i the safety measures that a reasonable landowner ihn would implement, but within security operations featuring extensive counterterrorism planning and investigation that required discretionary decision making with respect to the strategic allocation of police resources. (id., at 448). But, unlike safety precautions required of every reasonable landowner, the Port Authority's security operations featured policy-based decision m k n involving aig 7 [* 9] due consideration of pertinent factors such as the risk of harm, and the costs and benefits of pursuing a particular allmation of resources. (id., 4t 449). That the WTC was primarily a commercial building complex or that the bombing incident pertained, in part, to security maasures within the parking garage may implicate some proprietary responsibility, but it cannot overcome the governmental tenor of the security strategy established by the Port Authority to counteract terrorist intrusion. (id., at 452). While the instant terrorist bombing occurred wti the parking garage and may ihn focus some attention on proprietwy responsibility, the Port Authority's police resources were devoted to countering criminal incidents for the benefit of all who visited the WTC. Any failure to secure the parking garage against terrorist attack predominantly derives from B failed allocation of police resources. (id,at 455). The Court's interpretation ofthe police hction, bringing the Port Authority under the protection of governmental immunity,is relatively broad. It does not make a fine distinction between what are proper police m a u e ,suoh as assigning police patrols, and other measures esrs * nf slecurity - a distinction urged by the lower courts and the dissenting opinion. (-Inre Wnrld B Ctr. Bmob, V 3 Misc 3d 440,466467;776 N.Y.S.2d713 [Sup C ,NY Cty 20041; t Port Auth. ofNew Y ~ N G J w r 51 AD3d 337,344;856 N.Y.S.2d583 [lst Dept c ~ 20081." m e r e ,... the decisions made by the Port Authority wera made in its capacity as a landlord involved in the quintessentially private enterprise of running a parking garage i a n mqjor commercial building complex that was operated for profit: "In re WorldJ&de C L Litk, 17 NY3d 428,465; 933 N.Y.S.2d 164 [2011]). All security measures at the WTC were found to be of a governmental name. This holding applies equally to measures to prevent terrorist attacks and to minimize injuries to persons and property damage in an Y 8 [* 10] aftermath. Thus the Port Authority is not liable in negligence for its evacuation efforts and 'failureto maintain the backup infrastructure. l%3 effect o the lpylzjudgment on this c u e f Plaintiff argues that the Court of Appeals decision in the && case is applicqble only to that plaintiff, and does not warrant dismissal of her complaint. The & decision overturned the a vedict on liability reached after the jury trial. That trial w s the first part of a bifurcated process, the second stage of which was to establish damages of individual plaintiffs, including Esposito. Some of them already proceeded to trial, like Antgnio Ruiz and Linda Nash, others were awaiting it, like Susan Esposito, when the decision w s handed down. In light of the decision a whiqh shielded the Port Authority of tort liability, the issue of damages cannot proceed to trial. In a similar case arising out of an explosion in New York C t ,the First Department granted a iy motion by defendant City of New York to vacate a judgment previously entered against it and in favor of plaintiffs on the ground that, in a companion case, the Court of Appeals had reversed the interlocutoryjudgment of liability on which the final judgment w s based. ,McMW a V Cltv Qf Ntw Yo&, 105 AD2d 101; 483 N.Y.S.2d 228 [lst Dept 19841. In the present case there was no fmal judgment on damages. The court in the McMahon case commented: "Obviously, the Court of Appeals ruling would be binding in all the cases arising out of the explosion in which the question w s still open." (fd.,at 103). Another conclusion would make the trial on damages a W e , since any verdict would be necessarily set aside. This excruciatingly long litigation must have been very difficult for the victiins ofthe 1993 bombing. They came very close to winning the case, and one of the plaintiffs who secured a verdict in his favor lost as a result of the Court of Appeals decision. This court has no other option but to dismiss Susan Esposito's cornplaint, because the law of the case dictates it. 9 [* 11] CONCLUSION For the foregoin'g reasons, it is ORDERED that the motion of defendant Port Authority to renew its motion for s u m n judgment is granted; and it is further ORDERED that upon renewal, the complaint of Susan Esposito is dismissed; and it is further ORDERED that the Clerk of the Court enter the judgment accordingly. ENTER: NEW YORK COUNTY CLERK'S OFFlCE IO

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