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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 185 

In the Matter of New York City 

Asbestos Litigation.

Mary Andrucki, &c. et al.,

 Appellants,

 v.

Aluminum Company of America,

et al.,

 Defendants,

Port Authority of New York and 

New Jersey,

 Respondent.

Alani Golanski, for appellants.

Christian H. Gannon, for respondent.

SMITH, J.:

A statute requires anyone who brings a lawsuit against

the Port Authority of New York and New Jersey first to serve a

notice stating the nature of the claim. We hold that under this

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statute a notice of a claim for personal injuries is a sufficient

notice of a claim for wrongful death, where the person injured

dies of his injuries between the service of the notice of claim

and the beginning of the lawsuit.

I

The Port Authority was created in 1921 by a bi-state

compact between New York and New Jersey. As an agency of two

sovereign states, it cannot be sued without a waiver of sovereign

immunity. Such a waiver was enacted by both states' legislatures

in 1950. The New York version of the legislation is found in

sections 7101 through 7112 of the Unconsolidated Laws.

Unconsolidated Laws § 7101 says that consent to suit

against the Port Authority is given by New York "[u]pon the

concurrence of the state of New Jersey." Sections 7102 through

7105 state exceptions to the consent that are not relevant here,

and sections 7106 and 7107 state conditions to the consent. The

condition at issue in this case is in section 7107, which says in

relevant part:

"The foregoing consent is granted upon the

condition that any suit, action or proceeding

prosecuted or maintained under this act shall

be commenced within 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" 

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 (emphasis added).

The contents of a notice of claim are specified in

section 7108:

"The notice of claim required by section

[7107] 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."

II

George Andrucki, a sheet metal worker, was exposed to

asbestos in the course of work on a number of projects, including

the construction of the Port Authority's World Trade Center in

the early 1970s. Many years later, he was diagnosed with

mesothelioma, allegedly a result of asbestos exposure. He

received the diagnosis in late April of 2010, and it is

undisputed that that is when Andrucki's claim against the Port

Authority accrued.

On October 4, 2010, Andrucki and his wife served on the

Port Authority a "Notice of Claim for Personal Injury from

Asbestos." The notice briefly described Andrucki's exposure to

asbestos, and said that he was suffering from malignant

mesothelioma and that plaintiffs had incurred physical and

emotional injuries, medical expenses and loss of companionship

and consortium. The following day, the Andruckis filed a lawsuit

naming 17 defendants, including the Port Authority. It is

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undisputed that as to the Port Authority this October 5 filing

was premature and may be treated as a nullity, because under

Unconsolidated Laws § 7107 60 days must elapse between the notice

of claim and the commencement of suit.

Andrucki died on November 27, 2010, and his widow

became his administratrix. She did not serve a new notice of

claim, but amended the existing complaint to substitute herself

for her husband as a plaintiff. The amended complaint continued

Andrucki's personal injury action, which became a so-called

"survivorship" claim for damages incurred in his lifetime (see

EPTL § 11-3.2 [b]), and added a claim for wrongful death. On

January 18, 2011, Mrs. Andrucki filed a supplemental summons to

add the Port Authority as a defendant in the lawsuit. 

The Port Authority moved to dismiss the claims against

it, asserting that plaintiffs (Mrs. Andrucki as administratrix

and individually) had "failed to satisfy the conditions

precedent" to the bringing of the action, "thus denying the Court

subject matter jurisdiction." The motion had not been decided

when the case came on for trial and the Port Authority, relying

on its view that the court lacked jurisdiction, chose not to

participate in the trial. After trial, Supreme Court denied the

motion to dismiss and entered a default judgment against the Port

Authority.

The Appellate Division reversed, holding that

"plaintiffs should have served on the Port Authority a new notice

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of claim concerning the wrongful death and survivorship actions"

(Matter of New York City Asbestos Litig., 106 AD3d 617, 619 [1st

Dept 2013]). We granted leave to appeal (21 NY3d 865 [2013]) and

now reverse.

III

It is not disputed that the notice of claim at issue

here would have been valid as to a personal injury case filed in

Andrucki's lifetime. The issue is whether Andrucki's death

required service of a new notice. We hold that it did not.

A similar issue was presented in Holmes v City of New

York, 269 AD 95, aff'd without op 295 NY 615 [1945]), a case

involving a notice of a claim against the City of New York filed

pursuant to then Administrative Code of the City of New York §

394 a-1.0 (c). In Holmes, the Appellate Division held that "an

administrator can have the benefit of a notice of claim and

intention to sue a municipality which was filed by his intestate

prior to her death" (269 AD at 96), and we affirmed. The

Appellate Division reasoned that the wrongful death action was in

substance "a continuation of the original cause of action" for

personal injuries (269 AD at 98). Plaintiffs assert that Holmes

controls this case.

The Port Authority asks us to distinguish Holmes on the

ground that the notice of claim requirement at issue here, unlike

the one in Holmes, is a condition attached to a waiver of

sovereign immunity. Because the relevant statute limits the

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jurisdiction of the courts, the Port Authority argues that the

doctrine of "substantial compliance," which it says is the basis

for the Holmes decision, may not be invoked. Although the New

Jersey Supreme Court, interpreting NJSA § 32:1-164, which is

identical in wording to Unconsolidated Laws § 7108, has embraced

the doctrine of substantial compliance (Zamel v Port of New York

Authority, 56 NJ 1, 264 A2d 201 [1970]), the Port Authority says

that New York courts take a stricter approach. In response,

plaintiffs argue that we should conform our interpretation to New

Jersey's because the two states of which the Port Authority is an

agency should interpret the statutes governing suits against the

agency in the same way.

The Port Authority's argument finds some support in our

decisions involving suits against the State under the Court of

Claims Act. We have repeatedly held that "[b]ecause suits

against the State are allowed only by the State's waiver of

sovereign immunity and derogation of the common law, statutory

requirements conditioning suit must be strictly construed"

(Kolnacki v State of New York, 8 NY3d 277, 280 [2007], quoting

Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; see

also Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]),

and earlier cases). We do not retreat from these holdings; nor

do we imply that we would necessarily adopt in every case against

the Port Authority the "substantial compliance" approach of the

New Jersey court in Zamel. Plaintiffs are correct, however, in

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saying that consistency between the two states' interpretations,

where possible, is desirable, and we conclude that our precedents

do not require us to hold this notice of claim insufficient. 

Lepkowski and Kolnacki dismissed claims against the

State for failure to comply with Court of Claims Act § 11 (b),

which requires a claimant against the State to specify in a

notice of claim the time and place where the claim arose, the

items of damage or injuries allegedly sustained, and the total

sum claimed (see Court of Claims Act § 11 [b] [2]-[5]). The

notices in those cases did not contain that information. The

claims in Lepkowski identified no specific times, places or

amounts (see 1 NY3d at 207-208), and the Kolnacki claim was

similarly deficient as to the amount; it alleged that "[t]he full

extent of claimant's injuries [is] not yet known," and failed to

provide "any estimate whatsoever" (see 8 NY3d at 279, 281). 

Here, the relevant statutory requirements are that a

notice must specify the claimant, the time and place where the

claim arose, the nature of the claim, and "so far as then

practicable" the items of damage or injuries sustained (see

Unconsolidated Laws § 7108, quoted at page 3 above). Those

requirements were sufficiently met by the explanation in

Andrucki's notice of claim that he had contracted malignant

mesothelioma as a result of his exposure to asbestos on the World

Trade Center site in the early 1970s, and suffered physical and

emotional injuries and incurred medical expenses as a result. 

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This information was definite enough to fulfill the purpose of

the notice of claim requirement: to allow the State to

investigate the claim and to estimate its potential liability. 

It is hard to see how a later notice adding the information that

the claimant had died of his disease could have been necessary to 

an investigation.

The Port Authority relies on the Appellate Division's

decisions in Luciano v Fanberg Realty Co. (102 AD2d 94 [1st Dept

1984]) and Lyons v Port Authority of N.Y. & N.J., 228 AD2d 250

[1st Dept 1996]). We do not question the correctness of those

decisions, but they do not support the Port Authority's position

here. In both Luciano and Lyons, the plaintiffs had violated the

time requirements of Unconsolidated Laws § 7107. In Luciano, the

plaintiff had let the time for filing a notice of claim run, then

brought a lawsuit and sought to file a notice of claim nunc pro

tunc. In Lyons, the plaintiff failed to allow the required 60

days between the notice of claim and the commencement of the

action. The time requirements that the plaintiffs in those cases

ignored are the core of the statute. By contrast, the difference

between a notice of claim labeled "personal injury" and one

labeled "wrongful death" is, under the circumstances of this

case, essentially a formality.

Accordingly, the order of the Appellate Division should

be reversed with costs, and the case remitted to the Appellate

Division for consideration of issues raised but not determined on

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the appeal to that court. 

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and case remitted to the Appellate

Division, First Department, for consideration of issues raised

but not determined on the appeal to that court. Opinion by Judge

Smith. Chief Judge Lippman and Judges Graffeo, Read, Pigott,

Rivera and Abdus-Salaam concur.

Decided November 20, 2014

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