Rogers v. City of New York

• Decision Date: 21 April 1965
• Citation: 46 Misc.2d 373,259 N.Y.S.2d 604
• Parties: John C. ROGERS and Barbara M. Rogers, Plaintiffs, v. The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 604

259 N.Y.S.2d 604

46 Misc.2d 373

John C. ROGERS and Barbara M. Rogers, Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Supreme Court, Special Term, New York County, Part I.

April 21, 1965.

Leo A. Larkin, Corp. Counsel, New York City, for defendant.

Rosemary Higgins Cass, New York City, for plaintiffs.

WILLIAM C. HECHT, Jur., Justice.

Motion for an order, pursuant to CPLR 3212, seeking summary judgment in favor of defendant, is granted in respect of the plaintiffs' second cause of action, but is otherwise denied.

This action is brought to recover for personal injuries sustained by the plaintiff, Barbara M. Rogers, while she was a passenger aboard a ferryboat owned and operated by the defendant, which injuries allegedly resulted from the negligent navigation of the vessel. The alleged injury occurred on September 8, 1963 and the action was not commenced until Decemver 23, 1964, more than one year and ninety days after the accrual of the cause of action. Defendant seeks dismissal of the action on the basis of a statutory time bar, in that subdivision 1(c) of section 50-i of the General Municipal Law, relating to an action against the City of New York for personal injuries, provides that such action.

'* * * shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.'

Plaintiffs contend that, since the cause of action is upon a maritime tort, the admiralty doctrine of laches applies, and the court is not strictly bound by the statutory time limitation. Plaintiff urges further that the delay in proceeding to suit was justified, that the action was commenced only a few days after the state statute had run and that no prejudice has been caused to defendant by this minimal delay. Defendant concedes that the action is maritime in nature and that the plaintiffs could have brought their action on the 'admiralty side' of the United States District Court. Defendant further acknowledges, with some reservations, that the admiralty court would have judged the timeliness of the action by application of the doctrine of laches rather than by strict application of the state statute of limitations. Defendant argues, however, that, having instituted their action in this court, the plaintiffs are bound by the state statute of limitations, particularly since the same is procedural rather than substantive in nature.

Consideration of the applicability of this statute requires examination of two questions: (1) the nature and source of the rights sought to be enforced and (2) the liability of this particular defendant to answer therefor. It is settled that the rights and liabilities of the parties in connection with a maritime tort depend upon and arise out of maritime law (Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903). Plaintiffs' rights are rooted, not in state law, but in federal maritime law. Jurisdiction of this court over the action rests upon the so-called 'saving-to-suitors clause' of the Judiciary Act of 1789 (see, 1 Benedict on Admiralty, 5th Ed. § 22). When the state opens its courts to this type of action, which the Constitution has placed under national power to control in 'its substantive as well as procedural features' (Panama R.R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748), our courts must afford plaintiffs the full benefit of federal law (Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239). Even if plaintiffs are seeking to enforce state-created remedies for this right, federal maritime law is controlling (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143). Were this an action between private suitors, plaintiffs' federal substantive admiralty rights could not be defeated simply by the mechanical application of a state statute of limitations, on the 'admiralty side' or the 'law side' of federal court, or in a state court having jurisdiction to enforce federal maritime rights (Pope & Talbot, Inc. v. Hawn, supra, at p. 411, 74 S.Ct. 202; Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550; Garrett v. Moore-McCormack Co., supra; Chelentis v. Luckenbach SS. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; see also, Larios v. Victory Carriers, Inc., 316 F.2d 63, 2d Cir. 1963). If the question as to this defendant were to turn on a determination of whether the limitations statute is purely procedural or affects substantive rights of plaintiffs, the latter conclusion is more compelling. The various subdivisions of Section 50 of article 4 of the General Municipal Law purport to give private suitors a right of action which did not exist at common law, namely an action against the defendant municipal corporation for injuries caused by acts of agents of the City, committed in the performance of public governmental duties. (See, Poniatowski v. City of New York, 14 N.Y.2D 76, 248 N.Y.S.2d 849, 198 N.E.2D 237). The limitation on time to sue is contained in the very statute which grants the remedy and is such an integral part thereof that it must be deemed to affect the substantive rights created (Central Vermont Ry. Co. v. White 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433; Application of Benjamin v. State Liq. Auth., 17 A.D.2d 71, 230 N.Y.S.2d 888).

However, the fact already noted, that plaintiffs' rights are rooted not in state law but in federal maritime law, bears directly on the question of the amenability of the City of New York to suit, which the General Municipal Law purports to resolve. It was early decided by the U.S. Supreme Court that the City of New York has no 'independent sovereign immunity' (to be waived conditionally or otherwise), so that the City is amenable to suit in an admiralty court to answer for the commission of a maritime tort (Workman v. City of New York, Mayor, etc., 179 U.S. 552, 21 S.Ct. 212, 45 L.Ed. 314; see also Ex parte State of New York, No. 2, 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063). Our own highest court, in another type of General Municipal Law action, has indicated that a suit against New York City is not dependent upon the grant contained in that law since the City has no 'independent sovereignty' and, as a political subdivision of the State, is subject to the effects which flow from the State's general waiver of immunity contained in Section 8 of the Court of Claims Act (Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604).

It is defendant's contention that the limitation provision contained in the state statute must be given effect by this court, while it is clear that the same would not be applied in an identical suit brought on the admiralty side of federal court. This argument, at least insofar as it relates to substantive admiralty rights, has been unequivocally rejected by the U. S. Supreme Court (Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. 406, at p. 411, 74 S.Ct. 202)....