McKenzie v. Port Auth. of N.Y. & N.J.

• Decision Date: 25 January 2022
• Docket Number: 14706,Index No. 24832/20E, 43488/20E,Case No. 2021-03034
• Citation: 201 A.D.3d 572,157 N.Y.S.3d 714 (Mem)
• Parties: Roy MCKENZIE, Plaintiff–Respondent, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant–Appellant, JCM Business Solutions LLC et al., Defendants. [And a Third–Party Action]
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 572

157 N.Y.S.3d 714 (Mem)

Roy MCKENZIE, Plaintiff–Respondent,

v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant–Appellant,JCM Business Solutions LLC et al., Defendants.[And a Third–Party Action]

14706

Index No. 24832/20E, 43488/20E

Case No. 2021-03034

Supreme Court, Appellate Division, First Department, New York.

ENTERED January 25, 2022

Varvaro, Cotter & Bender, White Plains (Rose M. Cotter of counsel), for appellants.

Gruenberg Kelly Della, Ronkonkoma (Zachary M. Beriloff of counsel), for respondent.

Renwick, J.P., Mazzarelli, Moulton, Scarpulla, Higgitt, JJ.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about February 4, 2021, which denied the motion of defendant Port Authority of New York and New Jersey to dismiss the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against the Port Authority.

A condition precedent to suit against the Port Authority is that the action be commenced within one year of the accrual of the cause of action ( McKinney's Unconsolidated Laws of N.Y. § 7107 [L 1950, ch 301, § 7]; NJ Stat Ann § 32:1–163 ; see Trippe v. Port of N.Y. Auth., 14 N.Y.2d 119, 123, 249 N.Y.S.2d 409, 198 N.E.2d 585 [1964] ). Thus, dismissal of the complaint as against the Port Authority for lack of subject matter jurisdiction is required, since plaintiff's accident occurred on March 1, 2019, but he did not commence this action until May 29, 2020 (see Yonkers Contr. Co. v. Port Auth. Trans–Hudson Corp., 93 N.Y.2d 375, 378–379, 690 N.Y.S.2d 512, 712 N.E.2d 678 [1999] ; Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 96, 475 N.Y.S.2d 854 [1st Dept. 1984] ).

Contrary to plaintiff's contention, neither CPLR 217–a nor New York Unconsolidated Laws § 6412–a – both of which were enacted as part of the Uniform Notice of Claim Act (L 2012, ch 500, as amended by L 2013, ch 24) – extends the time in which an action may be commenced against the Port Authority. CPLR 217–a does not apply to the Port Authority because it is not a "political subdivision of the state, ... instrumentality or agency of the state or a political subdivision, ... public authority[,] or ... public benefit corporation entitled to receive a notice of claim as a condition precedent to commencement of an action" within the meaning of the statute; rather, it is a bistate agency ( Luciano, 102 A.D.2d at 97, 475 N.Y.S.2d 854 ; see also DiBenedetto v. Port Auth. of N.Y. & N.J., 2020 N.Y. Slip Op. 32964[U], *3, 2020 WL 5411501 [Sup. Ct., N.Y. County 2020] ). What is more, New Jersey has not enacted identical legislation (see Uniform Notice of Claim Act, L 2012, ch 500, § 79, as amended by L 2013, ch 24), and bistate entities created by compact are not subject to the unilateral control of any one state ( Hess v. Port Auth....