Kelly v Port Auth. of N.Y. & N.J.
Annotate this CaseDecided on September 24, 2013
Supreme Court, Bronx County
Paul Kelly, Plaintiffs,
against
The Port Authority of New York and New Jersey, 3 World Trade Center LLC and Tishman Construction Corporation, Defendant.
Peter Newell and Maureen Newell, Plaintiffs,
against
The Port Authority of New York and New Jersey, Defendants.
21525/2013e
Kelly v Port Auth. of N.Y. & N.J.
For Plaintiff: Sacks and Sacks, LLP by Adam Scott Levien, Esq.
For Defendant: Malapero & Prisco LLP by Keith J. Norton, Esq.
Newell v Port Auth. of N.Y. & N.J.
For Plaintiff: Leve & Steinberg, LLP by Daniela F. Henriques, Esq.
For Defendant: LeClairRyan by Timothy E. Shanley, Esq.
Lizbeth Gonzalez, J.
The Court exercises its discretionary authority in consolidating the above-captioned personal injury actions for the sole purpose of deciding defendant Port Authority's underlying motions to transfer venue. (See Grisi v Shainswit, 119 AD2d 418 [1st Dept 1986].) Although the matters involve different plaintiffs, both motions pose common questions of law and fact.
Plaintiff Paul Kelly commenced an action against defendants Port Authority of New York and New Jersey ("Port Authority"), 3 World Trade Center LLC and Tishman Construction Corporation in Bronx County. Mr. Kelly alleges that because of the defendants' negligence, he sustained personal injuries on 1/24/13 while working at the premises under construction at World Trade Center Tower 3. Defendant Port Authority maintains that it is entitled to a change of venue as a matter of right because there is no nexus to Bronx County since Mr. Kelly resides in Queens County; the incident occurred in New York County; and defendant Port Authority's principal office is located in New York County.
Plaintiffs Peter and Maureen Newell commenced an action against defendant Port Authority in Bronx County alleging that its negligence caused Mr. Newell to sustain personal injuries on 3/28/12 when he tripped and fell while on duty outside of the Operations Office of an airport terminal building in Queens County. Mrs. Newell claims a loss of consortium. Defendant Port Authority maintains that it is entitled to a change of venue of a matter of right pursuant to CPLR Rule 511 because the action has no nexus to Bronx County since Mr. and Mrs. Newell reside in Saratoga County; the incident occurred in Queens County; and defendant Port Authority's principal office is located in New York County.
In both actions, defendant Port Authority relies on CPLR § 510 and Rule 511 in moving to transfer venue from Bronx County to New York County, the location of its principal place of business.
Plaintiff Kelly maintains that the defendant's motion is frivolous; all three plaintiffs urge this Court to deny the Port Authority's motion to change venue based on prior court rulings that the Port Authority is a resident of each county or judicial district within the Port of New York for the purpose of suits, actions or proceedings pursuant to McKinney's Unconsolidated Law §7106. In support of its argument, the defendant references Section 505(a) of the Civil Practice Law and Rules which defines venue in actions involving public authorities.
CPLR §505. Actions involving public authorities.
(a) The place of trial of an action by or against a public authority constituted under the laws of the state shall be in the county in which the authority has its principal office of where it has facilities involved in the action. [*2]
Defendant Port Authority performs an essential government function for the people of New York and New Jersey as a bi-state corporation and joint agency that operates and maintains their interstate bridges and tunnels; air, bus and marine terminals; and the World Trade Center. (McKinney's Uncons Laws §§ 6403, 6501, 6451, 6454, 6601, 6631, 6634, 6671, 6703, 6732 and 6731; see Sullivan v Port Auth. of NY & N.J., 46 A2d 390 [NJ Sup Ct 1946].) While it is true that the Port Authority is a public authority, its reliance on CPLR §505(a) is misplaced. In 1834, the states of New York and New Jersey entered into an agreement to determine their rights and obligations with respect to the waters between the two states, especially those in and about New York Bay and the Hudson River. (See McKinney's Uncons Laws of NY § 6401.) In 1920, the two states pledged their cooperation in creating the Port of New York (McKinney's Uncons Laws of NY § 6402), which port district was created by bi-state compact in 1921. (McKinney's Uncons Laws of NY § 6404.) New York State waived sovereign immunity with respect to suits against the Port Authority by enacting Section 7101 of McKinney's Unconsolidated Laws in 1950. The Port Authority of New York and New Jersey, a joint agency, was ultimately created by New York and New Jersey in 1972 with powers and jurisdiction enumerated in Title 17 of the Unconsolidated Laws and such other and additional powers as thereafter conferred by the legislature of either state or by act of Congress. (McKinney's Uncons Laws § 6404.)
As a condition of their consent to suits against the Port Authority, the New York and New Jersey legislatures designated the Port Authority a resident of each county within the Port of New York district for venue purposes. In New York State, Section 7106 of McKinney's Unconsolidated Laws codifies how venue is placed in tort actions brought against the Port Authority.
§ 7106. Venue of action; consent to liability for tortious acts.
The foregoing consent is given (to the waiver of sovereign immunity) upon the condition that venue in any suit, action or proceeding against the port authority shall be laid within a county or a judicial district, established by one of said states or by the United States, and situated wholly or partially within the port of New York district. The port authority shall be deemed to be a resident of each such county or judicial district for the purpose of such suits, actions or proceedings.
The Port of New York district referenced in Section 7106 encompasses all of New York City including its interstate bridges and tunnels; air, bus and marine terminals; and the World Trade Center. Mr. Kelly was injured at the World Trade Center 3 construction site and Mr. Newell was injured at a LaGuardia Airport terminal; both incidents occurred within the Port of New York district.
In filing the underlying motions to change venue, the Port Authority seeks to circumvent the strictures of Section 7106. As succinctly explained in Alexander, Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR § 505), "Venue in actions against the Port Authority of New York and New Jersey is governed not by CPLR 505(a) but by Unconsolidated Law §7106."
In Port Auth. Trans-Hudson Corp. v Feeney, 495 US 299 (1990), the United States Supreme Court discussed the import of Sections 7101 and 7106 within the [*3]context of the Port Authority's motion to dismiss an action brought in the Southern District of New York against PATH. In analyzing the waiver of sovereign immunity by the States of New York and New Jersey with respect to the Port Authority, Justice Sandra Day O'Connor writing for the majority noted:
Although one might not look first to a venue provision to find evidence of waiver of sovereign immunity, we believe that (Section 7106) directly indicates the extent of the States' waiver embodied in the (Section 7101) consent provision. (New York and New Jersey) passed the venue and consent to suit provisions as portions of the same Acts that set forth the nature, time, and extent of the States' consent to suit. The venue provision expressly refers to and qualifies the more general consent to suit provision. Additionally, issues of venue are closely related to those concerning sovereign immunity, as this Court has indicated by emphasizing that "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued" (citations omitted).
Three Appellate Divisions cases are relevant here. In Rodriguez v Port Auth. of NY & N.J., 293 AD2d 325 (1st Dept 2002), the First Department reversed a lower court's decision to transfer venue from Bronx County to New York County, citing CPLR §510(3) and Unconsolidated Law § 7106 in an action where the alleged wrongful death occurred at JFK International Airport in Queens County.
Even though the allegedly wrongful death took place at JFK International Airport, in Queens County, venue is properly lodged, in an action against the Port Authority, in the Bronx or any other county that lies wholly or partially within the Port of New York district (McKinney's Uncons Laws of NY § 7106 [L 1950, ch 301, § 6])...
Defendants point to the court's discretionary authority to change the place of trial where "the convenience of material witnesses and the ends of justice" will thereby be promoted (CPLR 510 [3]). However, in order for the court to exercise its discretion, the moving party must provide detailed justification for such relief in the form of the identity and availability of proposed witnesses, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by the initial venue (Cardona v Aggressive Heating, 180 AD2d 572). Without this showing of inconvenience, the IAS court improvidently exercised its discretion in granting a change of venue that had been properly laid by statute
In Bollman v Port Auth. of NY & N.J., 17 AD3d 182 (1st Dept 2005), the First Department cited Section 7106 in reversing a lower court's decision to transfer venue from Bronx County to Queens County on CPLR § 505(a) grounds:
The decedent was killed in a work-related accident at John F. Kennedy International Airport, located in Queens County. Plaintiff brought this negligence action [*4]against a number of defendants, including the Port Authority, in Bronx County. The basis for venue was a law specifically applicable to the Port Authority, which provides that venue shall be laid in any county "situated wholly or partially within the port of New York district" (McKinney's Uncons Laws of NY § 7106 [L 1950, ch 301, § 6]). The IAS court transferred the action to Queens County, pursuant to CPLR 505 (a), which provides, more generally, that "[t]he place of a trial of an action by or against a public authority constituted under the laws of the state shall be in the county in which the authority has its principal office or where it has facilities involved in the action." The court erred in ordering transfer of the action pursuant to CPLR 505 (a). "A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies" (McKinney's Cons Laws of NY, Book 1, Statutes § 397). Accordingly, section 7106 governs this action, which was properly venued in Bronx County in the first instance (Rodriguez v Port Auth. of NY & N.J., 293 AD2d 325 [2002]).
In Dlugaski v Port Auth. of NY & N.J., 107 AD3d 536 (1st Dept 2013), the First Department cited Bollman in ruling that the lower court providently denied the Port Authority's motion to transfer venue from the Bronx based on its purportedly exclusive New York County residence and unpersuasive argument that travel to The Bronx would be inconvenient. (See Dlugaski v Port Auth. of NY & N.J., 28 Misc 3d 1203(A), [Sup Court, Bronx County 2010, Thompson, J.])
Not surprisingly, the defendant references Tarpey v Port Auth. of NY & N.J., 7 Misc 3d 1006(A) (Sup Ct, Bronx County 2005, Roman, J.) which transferred venue from Bronx County to Queens County where the incident in question occurred. Significantly, Tarpey was issued on 3/24/05, less than one month before the First Department recognized Section 7106 as a "special statute" that repeals and supercedes CPLR § 505 where venue in Port Authority matters is concerned. (Bollman v Port Auth. of NY & N.J., 17 AD3d 182; see McKinney's Cons Laws of NY, Book 1, Statutes § 397.) Significantly, the defendant cites only one other decision in its favor that is directly on point. (See Castillo v Port Auth. of NY & N.J., Sup Ct, Bronx County, July 21, 2011, Payne, J., Index No. 310305/10.) In furtherance of its argument that the plaintiff is "using the precious resources of the Bronx County Court system by methodically bringing every unrelated action against the Port Authority in Bronx County," the defendant has filed numerous motions to change venue to New York County where its principal office is located. In urging the Court to exercise its discretion pursuant to CPLR § 510 and Rule 511, the defendant asks this Court to disregard the aforementioned decisions of the United States Supreme Court and the Appellate Division, First Department and a plethora of non-binding decisions issued by Bronx Supreme Court Justices that are listed below, all of which reject the defendant's arguments:
1. In support of their argument that this court should exercise its discretion to change the venue of this case, the defendants rely exclusively on the fact that they claim a "lack of nexus" with Bronx County...In so doing they seek to distinguish the cases of Bollman v. Port Authority of New York and New Jersey, 17 AD3d 182 (1st Dept 2002) and Rodriguez v. Port Authority of [*5]New York and New Jersey, 293 AD2d 325 (1st Dept 2002) (partial cites) on the grounds that those cases were argue and decided on the basis of the convenience of material witnesses. While this court is unprepared to find that the "ends of justice" phrase of CPLR § 510(3) may never be utilized without a showing of inconvenience to material witnesses, the defendants have offered no evidentiary or legal support for such a claim in the instant case. (Verdon v Port Auth. of NY & N.J., Sup Ct, Bronx County, July 30, 2010, Williams, J., Index No. 0309654/09.)
2, 3. This court cannot conclude as a matter of law that venue in this action is improper because the Port Authority of New York and New Jersey can be sued in Bronx County pursuant to statute. See McKinney's Unconsolidated Laws of New York § 7106. Thus, movants have not met their burden pursuant to CPLR § 510(1) and venue shall be transferred as a matter of right. (Giovinco v Port Auth. of NY & N.J., Sup Ct, Bronx County, July 9, 2012, Friedlander, J., Index No. 301576/12; Reyes v Port Auth. of NY & N.J., Sup Ct, Bronx County, November 16, 2012, Friedlander, J., Index No. 304124/12.)
4, 5, 6, 7. Here, there is no dispute that the Port Authority has a place of residence in Bronx County; this action is thus properly venued in Bronx County pursuant to McKinney's Unconsolidated Laws of NY § 7106. (Brown v Port Auth. of NY & N.J., Sup Ct, Bronx County, April 1, 2013, Gonzalez, L.,J., Index No. 23273/12e; Ewing v Port Auth. of NY & N.J., Sup Ct, Bronx County, April 1, 2013, Gonzalez, L.,J., Index No. 23097/12e; Finucane v Port Auth. of NY & N.J., Sup Ct, Bronx County, April 1, 2013, Gonzalez, L.,J., Index No. 22978/12e; Villalona v Port Auth. of NY & N.J., Sup Ct, Bronx County, April 1, 2013, Gonzalez, L.,J., Index No. 22621/12e.)
8, 9. Defendants' motion to change venue must be denied and plaintiff's cross-motion to retain venue is granted. Notwithstanding that the accident took place in New York County and that defendant's principal office is located in New York County, venue in Bronx County is proper as it lies wholly or partially within the Port Authority's New York District. See, Rodriguez v. Port Authority of New York and New Jersey, 740 N.Y.S. 2 323 (1st Dept. 2002)(Even though the allegedly wrongful death took place at JFK International Airport, in Queens County, venue is properly lodged, in an action against the Port Authority, in the Bronx or any other county that lies wholly or partially within the Port of New York district). (Myiow v Port Auth. of NY and N. J., Sup Ct, Bronx County, June 25, 2012, Tuitt, J., Index No. 305237/2011; Geren v Port Auth. of NY & N.J., Sup Ct, Bronx County, June 25, 2012, Tuitt, J., Index No. 305934/11.)
10. This court cannot conclude as a matter of law that venue in this action is improper because the Port Authority of New York and New Jersey can be sued in Bronx County pursuant to statute. See McKinney's Unconsolidated Laws of New York § 7106. Furthermore, movants have not met their burden pursuant to CPLR § 5101(1) and venue shall not be transferred as a matter of right. (Rodrigues v Port Auth. of NY & N.J., Sup Ct, Bronx County, April 17, 2012, Aarons, J., Index No. 308586/11.)
11. According to the Notice of Claim, Plaintiff sustained personal injuries on or around [*6]September 27, 2011 at a construction site located in the fourth floor of Tower Four, World Trade Center, New York, New York. Plaintiff identified his residence as 3940 Nevada Avenue, Island Park, New York. This address is located in Nassau County, New York...(A)bsent a showing that venue in Bronx County would be inconvenient for the material witnesses in this matter, venue has been properly placed. This analysis has been implemented by the First Department in retaining venue of actions against the Port Authority in the Bronx. Rodriguez v. Port Auth. of NY & N.J., 293 AD2d 325 (1st Dept. 2002). (Coffin v Port Auth. of NY & N.J., Sup Ct, Bronx County, June 4, 2012, Brigantti-Hughes, J., Index No. 311374/11.)
12. Although the accident occurred in New York County and plaintiff is a Suffolk County resident, Bronx County is a proper venue for an action against the Port Authority. See McKinney's Unconsolidated Laws of New York §7106 ("venue in any suit, action or proceeding against the port authority shall be laid within a county or a judicial district, established by one of said states or by the United States, and situated wholly or partially within the port of New York district.") Transfer of this action to New York County pursuant to CPLR §505(a) would also be in error. See Bollman v Port Auth., 17 AD3d 182 [1st Dept 2005].) (Vocson v Port Auth. of NY & N.J., Sup Ct, Bronx County, August 28, 2012, Suarez, J., Index No. 304788/12.)
13. This Court cannot conclude as a matter of law that venue in this action is improper because the Port Authority of New York and New Jersey can be sued in Bronx County pursuant to statute. See McKinney's Unconsolidated Laws of New York §7106. Furthermore, movants have not met their burden pursuant to CPLR § 510(3) and a discretionary transfer is not warranted. (Wolkenfeld v Port Auth. of NY & N.J., Sup Court, Bronx County, May 9, 2012, Ruiz, J., Index No. 309027/11.)
While it appears that some view Bronx County as a venue that is favorable to plaintiffs, it is also true that defendant's verdicts are regularly reached by Bronx jurors. The Port Authority as a joint agency can seek redress from the New York State and New Jersey legislatures, its co-creators, to modify their definition of venue. Flooding the courts with recycled arguments that have been routinely rejected is an abject waste of scant judicial resources. The defendant's two motions to change venue are accordingly denied consistent with the United States Supreme Court's decision in Feeney and the First Department's rulings in Bolllman, Rodriguez and Duglaski. (Port Auth. Trans-Hudson Corp. v Feeney, 495 US 299; Bollman v Port Auth. of NY & N.J., 17 AD3d 182; Rodriguez v Port Auth. of NY & N.J., 293 AD2d 325; Duglaski v Port Auth. of NY & N.J., 107 AD3d 536).
22 NYCRR 130-1.1 authorizes the Court in its discretion to award costs to any party or attorney in the form of reimbursement for actual expenses and attorney's fees reasonably incurred as a result of frivolous conduct. (22 NYCRR 130-1.1[a].) The Court, as appropriate, may award costs and/or impose financial sanctions against either an attorney or a party to the litigation or against both. The award or sanction may be against the attorney personally or upon the corporation or government agency with which the attorney is associated and that has appeared as [*7]the attorney of record. (22 NYCRR 130-1.1[b].) For the purposes of the regulation, conduct is frivolous if it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law." (22 NYCRR 130-1.1[c][1].)
An award of costs may be made upon motion in compliance with CPLR 2214 or 2215 or upon the Court's own initiative, after a reasonable opportunity to be heard: "The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case." (22 NYCRR 130-1.1[d].) Here, the Court finds that the Port Authority's motions to transfer venue are indeed frivolous within the meaning of 22 NYCRR 130-1.1 in the context of its history of redundant motions to unsuccessfully transfer venue to New York County where its principal place of business is located and in the absence of a showing that actions venued in Bronx County are an inconvenience. This Court adheres to the principle of stare decisis: The defendant Port Authority is accordingly sanctioned. The respective plaintiffs shall submit within 30 days an affidavit to the Court setting forth their costs and expenses in defending this motion. The defendant shall thereafter submit its opposition papers, if any, within 15 days; alternatively, the Port Authority shall submit proof of payment to the Court. The Court will schedule oral argument and a return date if necessary.
This is the Decision and Order of the Court.
Dated: September 24, 2013
So ordered,
_______________________
Hon. Lizbeth González, JSC
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