Matter of New York City Asbestos Litig. , 2 N.Y.S.3d 431 ( 2015 )

Matter of New York City Asbestos Litig. (2015 NY Slip Op 00438)

Matter of New York City Asbestos Litig.

2015 NY Slip Op 00438

Decided on January 15, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

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Matter of New York City Asbestos Litig.

2015

ny

00438

10070 190377/10

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 15, 2015

Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, JJ.

10070 190377/10

[*1] In re New York City Asbestos

Litigation

Mary Andrucki as Administratrix for

the Estate of George P. Andrucki,

et al.,

Plaintiffs-Respondents,

Aluminum Company of America, et al.,

Defendants,

Port Authority Of New York and

New Jersey,

Defendant-Appellant.

Segal McCambridge Singer & Mahoney, Ltd., New York (Christian H. Gannon of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), for

Upon remittitur from the Court of Appeals for consideration of issues raised by not determined on appeal to this Court (__NY3d__ [2014], 2014 NY Slip Op 08053) judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 30, 2012, awarding plaintiffs damages, unanimously affirmed, without costs.

This matter was joined for trial with several other mesothelioma actions and scheduled for trial on July 11, 2011. By order to show cause and emergency application dated July 11, 2011, defendant Port Authority of New York and New Jersey sought summary judgment dismissing all the claims and cross claims against it, arguing that plaintiffs had failed to fulfill the conditions precedent to bringing the action because they did not serve a new notice of claim upon the Port Authority when plaintiff's decedent died. As a result, the Port Authority asserted, the court lacked subject matter jurisdiction.

Jury selection proceeded as scheduled and the trial began on July 26, 2011. However, the Port Authority did not appear because its summary judgment motion was still pending and it believed that the court lacked subject matter jurisdiction.

On September 7, 2011, Supreme Court denied the Port Authority's motion for summary judgment, finding that plaintiffs had complied with all the necessary conditions precedent to suit and that the court thus had proper subject matter jurisdiction over the Port Authority. Further, the court found that the Port Authority had not interposed an answer to the amended complaint and was therefore in default.

In August 2011, plaintiffs moved for a default judgment and assessment of damages against the Port Authority. In so doing, plaintiffs asked the court to rely on the testimony already in the record. The trial court granted the motion, finding, among other things, that the Port Authority's failure to appear at trial was a sufficient ground for a default judgment. The Clerk entered judgment in plaintiffs' favor and against the Port Authority in the amount of $2,500,000 plus interest.

On a prior appeal, we reversed, vacated the judgment, denied plaintiff's motion for a default judgment against the Port Authority, and dismissed the complaint, finding that, in fact, [*2]the trial court lacked subject matter jurisdiction because the death of plaintiff's decedent required service of a new notice of claim upon the Port Authority (106 AD3d 617 [2013]). The Court of Appeals reversed our order and remitted the case to this Court "for consideration of issues raised but not determined"

(__ NY3d __, 2014 NY Slip Op 08053).

The trial court properly awarded damages to plaintiffs without the benefit of an inquest. Under CPLR 3215(b), the trial court is permitted to make an assessment of damages without a jury, and although a defaulting defendant is ordinarily entitled to participate in an inquest on damages, a court may, under CPLR 3215(g)(1), "dispense with the requirement of notice and a hearing where the defendant has failed to proceed to the trial of an action reached and called for trial."

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 15, 2015

CLERK