Harris v. Hirsh

Decision Date05 August 1993
Citation601 N.Y.S.2d 275,196 A.D.2d 425
PartiesJoan V. HARRIS, Plaintiff-Respondent, v. Paul HIRSH, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Before MILONAS, J.P., and ROSENBERGER, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Hansel McGee, J.), entered May 7, 1992, which, after jury trial, awarded plaintiff $1,205,420, and order, same court and Justice, entered February 22, 1993, which denied defendant's motion to set aside the verdict, unanimously reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The parties were employees of Metro-North Commuter Railroad ("Metro-North"), defendant a supervisor and plaintiff a crew dispatcher. The complaint alleges that on July 16, 1986, in the presence of two intermediate supervisors, defendant asked if plaintiff had a problem and suggested that she might be taking drugs. Plaintiff then brought this action for slander. Defendant in his answer pleaded, among his defenses, lack of subject matter jurisdiction, arguing that the slander claim was preempted by the Railway Labor Act ("RLA") (45 U.S.C. § 151 et seq.). Justice Anita Florio dismissed that defense on November 23, 1987. Defendant, however, denied having been served with the order and, on April 1, 1992, after jury selection, moved for dismissal on the same grounds. Justice McGee found no preemption and denied the motion.

An objection to subject matter jurisdiction may be taken at any stage of an action, including on appeal (Marine Midland Bank v. Bowker, 89 A.D.2d 194, 195-196, 456 N.Y.S.2d 243, affd., 59 N.Y.2d 739, 463 N.Y.S.2d 441, 450 N.E.2d 247; Matter of Anthony J., 143 A.D.2d 668, 669, 532 N.Y.S.2d 924). Whether or not Justice McGee was bound by Justice Florio's order as the law of the case, this Court may reverse his order if it is substantively incorrect (Post v. Post, 141 A.D.2d 518, 519, 529 N.Y.S.2d 341). It is substantively incorrect.

In Angelo v. Metro-North Commuter R.R., 193 A.D.2d 525, 598 N.Y.S.2d 189, this Court held that pursuant to the RLA the state common-law remedies which might otherwise be invoked were preempted. There, a Metro-North policeman had been accused of stealing and, after a disciplinary hearing, was found guilty and dismissed from the force. On appeal to the Railroad Adjustment Board, however, the Board referee held that the misconduct...

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6 cases
  • Harris v. Hirsh
    • United States
    • New York Court of Appeals Court of Appeals
    • June 9, 1994
    ...out of a grievance and 'indisputably arises out of the employment relation between the plaintiff and * * * Metro-North' " (196 A.D.2d 425, 426, 601 N.Y.S.2d 275, quoting Angelo v. Metro-N. Commuter R.R., 193 A.D.2d 525, 598 N.Y.S.2d 189). We now Congress enacted the RLA (45 USC §§ 151-163) ......
  • Kaplan v. Einy
    • United States
    • New York Supreme Court — Appellate Division
    • November 15, 1994
    ...was bound by the law of the case, we would affirm her order in the interest of achieving substantial justice (see, Harris v. Hirsh, 196 A.D.2d 425, 601 N.Y.S.2d 275, affd. 83 N.Y.2d 734, 613 N.Y.S.2d 842, 636 N.E.2d 1375; Brooklyn Law School v. Raybon, Inc., 175 A.D.2d 56, 572 N.Y.S.2d 312;......
  • People v. Dean
    • United States
    • New York Supreme Court — Appellate Division
    • May 4, 2010
  • Nelson S., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • August 5, 1993
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