Rao v. Port of New York Authority, Civ. No. 14013.

• Decision Date: 28 June 1954
• Docket Number: Civ. No. 14013.
• Citation: 122 F. Supp. 595
• Parties: RAO v. PORT OF NEW YORK AUTHORITY et al.
• Court: U.S. District Court — Eastern District of New York

122 F. Supp. 595

RAO v. PORT OF NEW YORK AUTHORITY et al.

Civ. No. 14013.

United States District Court, E. D. New York.

June 28, 1954.

Sidney Goldstein, Brooklyn, N. Y., Daniel B. Goldberg, New York City, for defendant, Port of New York Authority appearing specially, for the motion.

Leon Weinstock, New York City, (Julian Buchbinder, New York City, of counsel), for plaintiff in opposition.

RAYFIEL, District Judge.

The defendant, The Port of New York Authority, appears specially and moves to dismiss the complaint as against it on the ground that this Court lacks jurisdiction over the subject matter thereof and over the person of this defendant.

It bases its motion on the failure of the plaintiff to comply with the provisions of Chapter 301 of the Laws of the State of New York, 1950, and Chapter 204 of the Laws of New Jersey, 1951, in the following two respects: (1) that the plaintiff failed to commence this action within one year after the accident, which is the subject matter thereof, occurred, and (2) that the plaintiff failed to serve a Notice of Claim sufficient to comply with the provisions of the aforementioned statutes.

The pertinent portions of the said statutes provide as follows: "§ 7. The foregoing consent to be sued is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within in one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. The provisions of this section shall not apply to claims arising out of provisions of any workmen's compensation law of either state. (Matter within parentheses added.)

"§ 8. The notice of claim required by section seven hereof shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable. Such notice may be served in the manner in which process may be served, or in lieu thereof, may be sent by registered mail to the port authority at its principal office. Where the claimant is an infant or is mentally or physically incapacitated and by reason of such disability no notice of claim is filed or suit, action or proceeding commenced within the time specified in section seven hereof, or where a person entitled to make a claim dies and by reason of his death no notice of claim is filed or suit, action or proceeding commenced within the time specified in section seven hereof then any court in which such suit, action or proceeding may be brought may in its discretion grant leave to serve the notice of claim and to commence the suit, action or proceeding within a reasonable time but in any event within three years after the cause of action accrued. Application for such leave must be made upon an affidavit...