Lumbermens Mut. Cas. Co. v. Port Authority of New York and New Jersey

• Decision Date: 29 February 1988
• Citation: 525 N.Y.S.2d 343,137 A.D.2d 796
• Parties: LUMBERMENS MUTUAL CASUALTY COMPANY, et al., Plaintiffs, American Motorist Insurance Company, Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 343

525 N.Y.S.2d 343

137 A.D.2d 796

LUMBERMENS MUTUAL CASUALTY COMPANY, et al., Plaintiffs American Motorist Insurance Company, Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 29, 1988.

Patrick J. Falvey, New York City (Arthur P. Berg, Sholem Friedman, Keith E Harris and Ann C. Barcher, of counsel), for appellant.

Wilson, Bave, Conboy & Bave, P.C., White Plains (R. Kevin Conboy, of counsel), for respondent.

Before MOLLEN, P.J., and KUNZEMAN, RUBIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a subrogation action to recover property damages, the defendant Port Authority of New York and New Jersey appeals from an order of the Supreme Court, Westchester County (Buell, J.), entered November 21, 1985, which denied its motion to dismiss the complaint insofar as it is asserted by the plaintiff American Motorist Insurance Company.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion is granted, the complaint insofar as asserted by the plaintiff American Motorist Insurance Company is dismissed, and the cause of action of the remaining plaintiffs is severed.

This is a subrogation action brought by Lumbermens Mutual Casualty Company (hereinafter Lumbermens) and American Motorist Insurance Company (hereinafter American), as subrogees, for alleged damages arising out of the theft of the insured's automobile from a LaGuardia Airport parking lot on June 25, 1982. Lumbermens, which insured the contents of the automobile, timely commenced an action on June 8, 1983. Thereafter, Lumbermens was granted leave to amend its complaint to add American, the insurer of the vehicle, as a named party plaintiff. The defendant was served with the amended complaint on June 5, 1985.

The defendant has waived immunity and consented to be sued only in the event that certain jurisdictional conditions precedent are complied with (see, L.1950, ch. 301, §§ 1-7; Trippe v. Port of N.Y. Auth., 14 N.Y.2d 119, 123-124, 249 N.Y.S.2d 409, 198 N.E.2d 585; Savino v. Demiglia, 128 A.D.2d 858, 513 N.Y.S.2d 776). One of these conditions precedent is that the action be commenced within one year after the cause of action has accrued (L.1950, ch. 301, § 7).

Failure to satisfy this condition results in a withdrawal of consent and compels the dismissal of the action for lack of subject matter jurisdiction ( see, Giannone v. Port Auth. of N.Y. & N.J., 127 A.D.2d 818, 819, 511...