Pogacnik v A.O. Smith Water Prods. Co.

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Pogacnik v A.O. Smith Water Prods. Co. 2018 NY Slip Op 30724(U) April 23, 2018 Supreme Court, New York County Docket Number: 190340/2015 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/25/2018 10:14 AM 1] NYSCEF DOC. NO. 323 INDEX NO. 190340/2015 RECEIVED NYSCEF: 04/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: . PART 46 .. ------~------~~----:-~-----.--------~--x TATJANA POGACNIK, as Executrix of the Estate of LEON B. POGACNIK, and TATJANA POGACNIK, Individu~lly, Index-No. 190340/2015 Plaintiff against A.O. SMITH WATER PRODUCTS DECISION AND ORDER co. , et al. , Defendants -----------~---~:-:~-~----~---~---~~--x LUCY BILLINGS, J.S.C.: I. BACKGROUND Plaintiff seeks damages for the deceased Leon Pogacnik's injuries and death from exposure to materials.and equipmen~, 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 ~ersey 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 ·11 apprbximately 1972-1973." . Marshall S~ Aff. of . Plaintiff's chart of Pogacnik's Turner Ex. A, at\1. history of employers and jobsites, an exhibit to the complaint, lists ··work ori two JFK Airport prcij"ects 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 1 2 of 6 [*FILED: NEW YORK COUNTY CLERK 04/25/2018 10:14 AM 2] NYSCEF DOC. NO. 323 INDEX NO. 190340/2015 RECEIVED NYSCEF: 04/25/2018 building during the late 1970s fo"rsix to nine months, and the Pan American Airways terminal durihg 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 19708 as plaintiff now claims.in th.is 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. " Laws§ 7108. N. Y; ., McKinney'. s Unconsol. The requirement for_ a notice\of claim is jurisdictional, Belpasso v. Port Auth. ofN.Y. & N.J., 103 A.D.3d 562, 562. (1st Dep'.t 2013); City of Ne·w York v. Port Auth . , . . of N.Y. & N.J., 284 A.D.2d 195, 195. (1st Dep't 2001) Port Auth·. of N.Y. & i Lyons v. 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 I ! I 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, i45 A.D.3d 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 04/25/2018 10:14 AM 3] NYSCEF DOC. NO. 323 INDEX NO. 190340/2015 RECEIVED NYSCEF: 04/25/2018 553, 555 (1st Dep't 2016); Person v. New York City Hous. Auth., 129 A.D:3d 595, 596 (1st Dep't 2015). Plaintiff'srtotice of: claim satisfied the statutory requirements as it specified that Pogacnik developed mesot_helioma as a result of his exposure to asbestos while working at JFK ' N_. Y: McKirtney' s Airport from approxima~ely 1972 t6 1973. Unconsol. Laws §§ 7101, 7108. confers_ subject matter Plaintiff's notice of _claim thus jurisdict~oh over _her_claimsagainst_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 du-ring the late 1970s merely amplifies her notice of claim to cover any exposure extendihg through 1979, well beyond the notice of claim' s specification of exposure to asbestos in ''approximately 1972-73." Venture~, See Dasilva v. C & E Turner Aff. Ex. A, at 1. Inc., ~3 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 contir,mously 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 P_ogacnik 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 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 04/25/2018 10:14 AM 4] NYSCEF DOC. NO. 323 INDEX NO. 190340/2015 RECEIVED NYSCEF: 04/25/2018 additional exposure period during t::he late 1970s or change the exposure period altogether from 1972 through.1973 to the late 1970s in her notice of claim. Plaintiff may.not·s~mply 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, bu,t 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 1 defeat the notice of claim' s purpqse of enabl ing 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 Poga~nik'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 4 5 of 6 [*FILED: NEW YORK COUNTY CLERK 04/25/2018 10:14 AM 5] NYSCEF DOC. NO. 323 INDEX NO. 190340/2015 RECEIVED NYSCEF: 04/25/2018 JFK Airport during·1972 to 1975, however:; the court denies . . . defendant Port A-uthority of N~w·York & New Jersey/s.motion-to dismiss the claims against the Po:rt Authority._· C.P.L:_R. §· 3211 (a) (2). DATED: April 23, 2·018 LUCY BILLINGS, J.S.C. LUCY BILLINGS- . 5 .. 6 of 6 . J:S.C

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