Trippe v. Port of New York Authority

• Decision Date: 02 April 1964
• Citation: 249 N.Y.S.2d 409,14 N.Y.2d 119,198 N.E.2d 585
• Parties: , 198 N.E.2d 585 Thomas TRIPPE et al., Respondents, v. PORT OF NEW YORK AUTHORITY, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 409

249 N.Y.S.2d 409

14 N.Y.2d 119, 198 N.E.2d 585

Thomas TRIPPE et al., Respondents, v. PORT OF NEW YORK AUTHORITY, Appellant, et al., Defendants.

Court of Appeals of New York.

April 2, 1964.

Daniel B. Goldberg, Sidney Goldstein, Nathaniel Fensterstock, Joseph Lesser and Alan J. Littau, New York City, for appellant.

David G. Lubell and Joseph P. Marcelle, New York City, for respondents.

DESMOND, Chief Judge.

The 809 plaintiffs are owners of residences in the vicinity of Kennedy (formerly Idlewild) International Airport in Queens County. Defendant Port Authority which operates the airport is a governmental agency of the States of New York and New Jersey (see Whalen v. Wagner, 4 N.Y.2d 575, 176 N.Y.S. 616, 152 N.E.2d 54). A number of airlines which use the airport are defendants, also, but on this appeal we are not concerned with the suit as against the airlines but with the complaint's first cause of action which is asserted against the Authority alone.

Shortly stated, our question is: does the one-year statutory limitation on suits against the Authority (New York L.1950, ch. 301, § 7, McK.Unconsol.Laws, § 7107 and New Jersey, L.1951, ch. 204, N.J.S.A. 32:1-157 et seq.) require the granting of the Authority's motion to strike from the first count of the complaint all allegations relating to such or so much of plaintiffs' claims for compensation for alleged taking of plaintiffs' properties as accrued more than one year before this action was brought?

Special Term granted the Authority's motion to the extent of striking out those allegations only which complained of trespasses and nuisances committed before December 14, 1960 that is, more than a year before suit was brought. The court's holding was that as to trespass and nuisance claims the statutory one-year time limitation applied to toll the suit as against the Authority. Special Term denied the motion as to the alleged takings of property before December 14, 1960, holding that there was no one-year or other time limit on a suit for the taking of private property by the Authority without compensation. The Appellate Division affirmed, its view being that the statute (N.Y.L.1950, ch. 301, § 7) has nothing to do with suits for unlawful taking of property, and that suits therefor are subject to no time limitations except the 15-year prescription period of former section 37 of the Civil Practice Act.

We turn to the complaint. In substance, the first cause of action (with which we are dealing) says that beginning in 1947 and continuously thereafter airplanes using the airport made so much noise and flew so near plaintiffs' houses as to deprive plaintiffs of the quiet use and enjoyment thereof, that plaintiffs' properties through all that period have been used by the Authority as an approach area for planes with the result that the Authority, without taking any condemnation proceedings or paying any compensation, has not only been guilty of nuisances and trespasses but is chargeable with the illegal and noncompensated taking of plaintiffs' properties.

We hold that the one-year limitation is mandatory as to all suits against the Port Authority. Until chapter 301 of the Laws of 1950 McK.Unconsol.Laws, § 7101 et seq. (and its New Jersey counterpart N.J.S.A. 32:1-157 et seq.) came onto the statute books the Port Authority as a direct agency of the State of New York was, in the absence of any consent by the State, completely immune from suits of any sort (Pauchogue Land Corp. v. Long Is. State Park Comm., 243 N.Y. 15, 152 N.E. 451; Locke v. State of New York, 140 N.Y. 480, 35 N.E. 1076; People ex rel. Palmer v. Travis, 223 N.Y. 150, 119 N.E. 437; Easley v. New York State Thruway Auth., 1 N.Y.2d 374, 153 N.Y.S.2d 28, 135 N.E.2d 572; Benz v. New York State Thruway Auth., 9 N.Y.2d 486, 215 N.Y.S.2d 47, 174 N.E.2d 727, cert. dsmd. 369 U.S. 147, 82 S.Ct. 674, 7 L.Ed.2d 634). There is of course a prohibition in our State Constitution (art. 1, § 7) against the taking of private property for public use without compensation. But recognition of the validity of a claim and provision for its enforcement are two quite different things. 'A valid cause of action may exist, but the state's immunity prevents its enforcement' (Buckles v. State of New York, 221 N.Y. 418, 423-424, 117 N.E. 811, 812). The practice has been for the State to pass consent statutes (see historical survey in People ex rel. Palmer v. Travis, 223 N.Y. 150, 119 N.E. 437, supra), but it remains the law that although the State 'cannot take private property, though for public use, without making just compensation therefor' it or its agencies cannot without express consent by the State 'be sued directly, but its agents may be sued and enjoined' (Coster v. Mayor of Albany, 43 N.Y. 399, 408; see, generally, People ex rel. Herrick v. Smith, 21 N.Y. 595). As recently as 1961 in Benz v. New York State Thruway Auth. (9 N.Y.2d 486, 489, 215 N.Y.S.2d 47, 49, 174 N.E.2d 727, 728, supra) we said as to the Thruway Authority that the Legislature "could have forbidden suits to be maintained against the Authority in any court or tribunal" (see discussion of Benz in Matter of New York Post Corp. v. Moses, 10 N.Y.2d 199, 219 N.Y.S.2d 7, 176 N.E.2d 709). The right of the State to refuse its consent to the enforcement in court of a valid claim has been completely settled for many years (Danolds v. State of New York, 89 N.Y. 36; Quayle v. State of New York, 192 N.Y. 47, 84 N.E. 583; see Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 .l.Ed. 842; Palmer v. State of Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108). And, since the State may decline to consent, its consent if given may be made contingent on a suit being brought or a demand being made within a reasonable time (Rexford v. Knight, 11 N.Y. 308; Gates v. State of New York, 128 N.Y. 221, 228, 28 N.E. 373, 374; 1 Nichols, Law of Eminent Domain (3d ed.), § 4.102, pp. 323-324; see United States v. North Amer. Co., 253 U.S. 330, 333, 40 S.Ct. 518, 64 L.Ed. 935).

We come now to the core of plaintiffs' argument. They find it necessary to read section 7 of article I of the New York Constitution not only as a mandate for payment but as a complete and self-executing authorization for suits against the State for property takings. It follows, they say, that chapter 301 of the Laws of 1950, since it contains a consent to suits as well as a time limitation thereon, could not have been intended by the Legislature to apply to suits against the State or its agencies for takings. In other words, the Constitution itself, they contend, sets up procedures for suits by citizens for property appropriations and chapter 301 of the Laws of 1950 must refer to something else. The first answer is found in the statute (ch. 301) itself. In its section 1 the statute gives New York's consent to 'suits, actions or proceedings of any form or nature * * * against the Port of New York Authority' and in section 7 limits that consent by stating that it is granted upon the condition that 'any suit, action or proceeding prosecuted or maintained under this act * * * be commenced within one year after the cause of action therefor shall have accrued'. The sweeping coverage of chapter 301 simply makes impossible any exclusion therefrom of any particular kind of suits except those specifically excluded in other parts of chapter 301 (see Rao v. Port of N. Y. Auth., D.C., 122 F.Supp. 595, affd. 2 Cir., 222 F.2d 362, as to this statute's being clear and unambiguous and requiring strict construction).

Plaintiffs' argument from the State Constitution is a double one. First, plaintiffs say that subdivision (a) of section 7 of article I of the State Constitution is in itself not only a self-executing, complete and absolute guarantee of compensation but also a waiver of immunity or, rather, a recognition that there is no sovereign immunity from suit for such compensation.

The relevant part of section 7 of article I is in two parts. Subdivision (a) says that 'Private property shall not be taken for public use without just compensation.' As we have fully demonstrated above, this states a liability but has nothing to do with enforcement of the claim or with sovereign immunity from suit, which are quite different things (Buckles v. State of New York, 221 N.Y. 418, 423, 117 N.E. 811, 812, supra). Subdivision (b) of section 7 or article I of the State Constitution reads thus: 'When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by the supreme court without a jury, but not with a referee other than an official referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.' This language is on its face no more than a listing of the tribunals or agencies by which compensation is to be fixed. Consent to suit is not included and must be looked for elsewhere.

Plaintiffs insist that this provision (N.Y.Const., art. I, § 7, budb. (b)) was self-executing without any further prescription of procedures and that, therefore, when the Legislature passed the Port Authority Act the limitations in the new statute must have been intended to apply to causes of action other than for the taking of real property. The opposite of this was decided just after the 1847 Constitution went into effect, in People ex rel. Dubois v. Supervisors of Ulster County (3 Barb. 332, 334). The Dubois case says that article I (§ 7, subd. (b)) prescribes only the mode for fixing the compensation, that it contemplated legislation as to authorizing suits, etc., and that without such legislation no suit for damages would lie. The constitutional language itself 'as * * * prescribed by law' bears this out. Indeed, the same point was disposed of in People v. Adirondack Ry. Co. (160 N.Y. 225, 237, 54 N.E. 689, 692) where this court said that the subdivision (b) provision of...