IN RE NEW YORK CITY ASBESTOS LITIGATION MARY ANDRUCKI, ETC. plf-res, v. ALUMINUM COMPANY OF AMERICA def, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, def-ap

10070. IN RE NEW YORK CITY ASBESTOS LITIGATION MARY ANDRUCKI, ETC. plf-res, v. ALUMINUM COMPANY OF AMERICA def, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, def-ap — Segal McCambridge Singer & Mahoney, Ltd., New York (Christian H. Gannon of counsel), for ap — Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), for res — __—Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 30, 2012, awarding plaintiffs damages, unanimously reversed, on the law, without costs, the judgment vacated, plaintiffs' motion for a default judgment against defendant Port Authority of New York and New Jersey denied, and defendant's motion to dismiss the complaint for lack of subject matter jurisdiction granted. The Clerk is directed to enter judgment accordingly.

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10070. IN RE NEW YORK CITY ASBESTOS LITIGATION MARY ANDRUCKI, ETC. plf-res, v. ALUMINUM COMPANY OF AMERICA def, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, def-ap — Segal McCambridge Singer & Mahoney, Ltd., New York (Christian H. Gannon of counsel), for ap — Weitz & Luxenberg, P.C., New York (Daniel T. Horner of counsel), for res — __—Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 30, 2012, awarding plaintiffs damages, unanimously reversed, on the law, without costs, the judgment vacated, plaintiffs’ motion for a default judgment against defendant Port Authority of New York and New Jersey denied, and defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction granted. The Clerk is directed to enter judgment accordingly.

In 1971 and 1972, plaintiffs’ decedent, a sheet metal worker, worked on the construction of defendant Port Authority’s World Trade Center, where he believed he was exposed to asbestos and inhaled fibers. He was diagnosed with malignant mesothelioma in or about April 2010. On October 4, 2010, he and his wife filed a notice of claim against defendant for the injuries he sustained, and on November 12, 2010, they served the complaint. On November 27, 2010, decedent died. Although plaintiffs’ counsel should have been aware of the time requirements in the applicable statute, the service of the complaint was premature, resulting in a lack of subject matter jurisdiction over the Port Authority (see McKinney’s Unconsolidated Laws of NY §7107 [requiring service of a notice of claim at least 60 days before commencement of the action]; see e.g. Lyons v. Port Auth. of N.Y. & N.J., 228 AD2d 250 [1st Dept 1996]; Ofulue v. Port Auth. of N.Y. & N.J., 307 AD2d 258 [2d Dept 2003]; see also Campbell v. City of New York, 4 NY3d 200, 204 [2005]).

IN RE NEW YORK CITY ASBESTOS LITIGATION MARY ANDRUCKI, ETC. plf-res, v. ALUMINUM COMPANY OF AMERICA def, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, def-ap

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