Erwing v Aerco Intl., Inc.

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Erwing v Aerco Intl., Inc. 2021 NY Slip Op 31877(U) June 3, 2021 Supreme Court, New York County Docket Number: 190362/2017 Judge: Adam Silvera 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: 1] NEW YORK COUNTY CLERK 06/04/2021 04:46 PM NYSCEF DOC.I. NO. 71 INDEX NO. 190362/2017 RECEIVED NYSCEF: 06/04/2021 I ' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY J PRESENT: II HON. ADAM SILVERA PART IAS MOTION 13 Justice -X __ I i - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - INDEX NO. 1: MARIA ERWING, MARIA ERWING, MOTION DATE I Plaintiff, MOTION SEQ. NO. 190362/2017 10/19/2020 001 - V I! J;'-ERCO INTERNATIONAL, INC.,BMCE INC.,CARRIER C9RPORATION, CBS CORPORATION, F/K/A VIACOM INC.,CONSOLIDATED EDISON COMPANY, CRANE CO., F,MC CORPORATION, FOSTER WHEELER, L.L.C., GENERAL ELECTRIC COMPANY, GOULDS PUMPS UL.C,IMO INDUSTRIES, INC.,ITT LLC., WARREN PUMPS, ll~C,PORT AUTHORITY OF NEW YORK AND NEW JERSEY, I. Defendant. DECISION + ORDER ON MOTION 11 ---;-------------------------------------------------------------------X i I The following e-filed documents, listed by NYSCEF document number (Motion 001) 47, 48, 49, 50, 51, 51·153. 54, 55, 56, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70 ' were read on this motion to/for DISMISS I, . Aft~r oral argument and upon the foregoing documents, it is ORDERED that defendant The Port Athority of New York and New Jersey's ("Port Authority") motion to dismiss plaintiff Paul E. Eiig's ("Decedent") Complaint pursuant to CPLR 3211 (a)(2) for lack of subject matter julkdiction is denied. Defendant argues that the Court lacks subject matter jurisdiction over the I. pJJI, Authority due to Plaintiffs failure to comply with the statutory condition precedent to co~mencing suit against Port Authority. Plaintiff opposes the motion and cross-moves for an oJ~er deeming the plaintiff's August 20, 2018 Summons and Complaint naming Port Authority as IJroperly and timely filed. I i,_ . Pursuant to N.Y. Unconsolidated Laws 7107, any suit against Port Authority shall be I coh\menced within one-year after the cause of action and a party must serve the Port Authority wilh a Notice of Claim at least sixty days before a party files!suit against the Port Authority. In I: 190362/2017 ERWING, MARIA vs. AERCO INTERNATIONAL, INC., Motion No. 001 '. 1 of 5 Page 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 06/04/2021 04:46 PM NYSCEF DOC. NO. 71 INDEX NO. 190362/2017 RECEIVED NYSCEF: 06/04/2021 1. ' I I. I: Y~~kers Contracting Company, Inc. v. Port A~thority Trans-Hudson Corporation, 93 N.Y.2d I! 375, 712 N.E.2d 678. 690 N.Y.S.2d 512 (1999), the Court of Appeals held that New York I; . Unconsolidated Laws§ 7107's requirement that actions be commenced against the Port I :honty . wit . h'm one-year o f accrua I was not a statute o f 1·1m1tat1ons . . but rat her a con d'1t1on . ---.. Aut 11 pre1cedent to suit, which could not be tolled by CPLR 205(a). I: I. Defendant alleges that plaintiff failed to file a Complaint against the Port Authority I. within one-year of the accrual of Decedent's cause of action. As a result, defendant argues that thl!complaint against Port Authority must be dismissed as 1matter of law because the Court iabks subject matter jurisdiction. Defendant notes that plaintiff served Notice of Claim on P01t I! Ahthority on November 17, 2017 which clearly and unequivocally states that plaintiffs claim 11 ; ar~se in "2017 [when plaintiff] was diagnosed with asbestos-related lung cancer" as a result of I allJged exposure to asbestos (Mot, Exh A). On November 20. 2017, plaintiff commenced this ac1tLn against multiple defendants, but not the Port Authority (Mot, Exh C). Plaintiff filed a sJLnd Amended Complaint alleging claims against the Port Authority on August 20, 2018 I; . (Mpt, Exh D). Port Authority acknowledged receipt of the Second Amended Complaint and filed iJ ~tandard Answer asserting Affirmative Defenses, including an affirmative defense of lack of I' I! subject matter jurisdiction (Mot, Exh F). II 1. Defendant argues that prior to the enactment ofN.Y. Unconsolidated Laws 7107, Port I. Ay\hority, as a direct governmental agency of the States ofNew York and New Jersey, was ab~lutcly immune from suit (Trippe v. Port of New York Authority, 14 N.Y.2d I 19,249 N:Y.S.2d 409 [1964]). Port Authority's waiver of its absolute immunity from suit has been stJJtly construed (Id). The Court of Appeals held that in view of this, Port Authority was .immune l! 1rom SUit as to any cIaim. occurring . outs1"dethe one-year per10 . d set 1orth m . N ew "-' or,k r. . C I . I I I 190362/2017 ERWING, MARIA vs. AERCO INTERNATIONAL, INC., Motion No. 001 2 of 5 Page- 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 06/04/2021 04:46 PM NYSCEF DOC. I 'NO. 71 INDEX NO. 190362/2017 RECEIVED NYSCEF: 06/04/2021 Urf°nso!idated Laws§ 7107 (id at 123-124, 410-411). Thus, defendant argues that the very exi~tence of a right to bring suit against the Port Authority is conditioned on precisely following Ii . N.:~- Unconsolidated Laws 7107, which plaintiff has failed to do. Ii ': I'. ! In opposition, plaintiff notes that the Port Authority fails to apprise this Court that the pl1intiff died on January 1, 2018 and that.an Estate Represeritative was not appointed by the Q~~ns County Surrogate Court until July 9, 2018, a period slightly in excess of six months, dJing which the Estate was entitled to a statutory tolling pursuant to Unconsolidated Law sJlion 7108. Plaintiff concedes that it failed to obtain this C~urt's permission for a late filing an~; cross-moves to ask the Court to deem plaintiffs August 20, 2018 Supplemental Summons an~; Second Amended Complaint which added the Port Authbrity as defendant to the instant mlter as properly and timely filed. Plaintiff notes that August 20, 2018 was about forty-one days aftUr Letters of Administration were issued but within seventy-eight days that the plaintiff had rerWaining on the one-year statute of limitations. Il : Pursuant to Unconsolidated Law section 7109, "[w]here a person entitled to make a claim diJs and by reason of his death no notice of claim is filed or suit, action or proceeding i; . h'mthe time . . seven hereo f., then any court ... may .m its . commenced wit spec1'fi1ed .m section .I; . . ... wit . h'm a reasona bl e time . but .m any event wit . h'm d1scret1on grant leave to ... commence the smt I' th~Je years after the cause of action has accrued." The Court :of Appeals has held that where I st~thte requires anyone who brings suit against Port Authority to service a notice stating the !. . nai~re of the claim, "notice of a claim for personal injuries is a sufficient notice of claim for wr~ngful death, where the person injured dies of his injuries .between the service of the notice of thJ biaim and the beginning of the lawsuit" (In re New York City Asbestos Litigation, 24 NY3d I: , 275·, 278 [2014 ]). The purpose of the notice of claim requirement is to allow the State to I I; 190362/2017 ERWING, MARIA vs. AERCO INTERNATIONAL, INC., Motion No. 001 3 of 5 I' Page 3of 5 [*FILED: 4] NEW YORK COUNTY CLERK 06/04/2021 04:46 PM NYSCEF DOC.I NO. 71 INDEX NO. 190362/2017 RECEIVED NYSCEF: 06/04/2021 i I I in~~stigate the claim and to estimate its potential liability. Here, plaintiff served Notice of Claim i: . on Port Authority on November 17, 2017 and Port Authority actively participated in discovery fr4,h the inccpt ion of the lawsuit to present allowing iIto csI: mate its poten ti al Iiab iIi ty. I, I. The Court finds that plaintiff's August 20, 2018 filing against the Port Authority, would I. hal~ been a timely filing of the action, had leave of court had been obtained at the time. The cJurt notes that plaintiff has proffered an excuse for the failure to timely file and concludes that I I defendant will not be prejudiced should the Court grant plaintiff permission for the late filing. Dj)endant has fully participated in discovery in the instant matter. Port Authority appeared at I D~cedent's deposition and had the opportunity to orally examine Decedent. Given the cirl~mstances of Decedent's death, the delay of an Estate Representative being appointed, and I: . def~ndant's full participation in discovery in this matter, the Court grants plaintiffs cross-motion seJtng leave to deem the August 20, 2018 Amended Complaint as filed timely and denies Port I. AJ~hority's motion to dismiss the Complaint. I I 1 ; I !, Accordingly, it is ORDERED that defendant's motion to dismiss plaintiffs complaint is denied; and it is I: further l: ' ORDERED that plaintiffs cross-motion for an order 'deeming the plaintiff's August 20, 20!1~ Summons and Complaint naming The Port Authority of NY and NJ as properly and timely • I filbd is granted; and it is further i I ' II ORDERED that within 30 days of entry, plaintiff shall serve a copy of this - I Decision/Order upon defendants with notice of entry. I! I This Constitutes the Decision/Order of the Court. i I I; 190362/2017 ERWING, MARIA vs. AERCO INTERNATIONAL, INC., Motion No. 001 I• I I ! I: 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 06/04/2021 04:46 PM NYSCEF DOC. NO. 71 INDEX NO. 190362/2017 RECEIVED NYSCEF: 06/04/2021 !' I; I; OJ 6/3/2021 ADAM SILVERA, J.S.C. DATE Ci;CKONE: CASE DISPOSED GRANTED • ~ DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT Il ! 0 • OTHER REFERENCE i. '' I I I 190362/2017 ERWING, MARIA vs. AERCO INTERNATIONAL, INC., Motion No. 001 I' 1· 5 of 5 Page 5of 5

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