New Notice of Claim Did Not Need to Be Filed After Plaintiff’s Decedent’s Death Due to Injuries Described in the Pre-Death Notice of Claim

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that plaintiffs, in an asbestos-exposure action against the Port Authority, did not need to file a new notice of claim after plaintiff’s decedent’s death from injuries described in the notice of claim filed when plaintiff’s decedent was alive.  After plaintiff’s decedent’s death, the original notice of claim was amended to add the administratrix and reference to the wrongful death claim:

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 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.

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.

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.”

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 …). Those requirements were sufficiently met by the explanation in [plaintiff’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. 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. Matter of New York City Asbestos Litig, 2014 NY Slip Op 08053, CtApp 11-20-14