The Port Authority of New York and New Jersey does not have to pay a $4.5 million judgment to a woman who was injured in the 1993 World Trade Center bombing because the Court of Appeals found that the Port Authority was not liable for the bombing in a separate case, a divided state appellate panel has ruled.
The unsigned majority opinion yesterday in Nash v. Port Authority, 129074/93, held that a lower court was right to vacate the judgment in favor of the woman even though it had become final and non-appealable, and the woman was not a party to the separate Court of Appeals case. The majority consisted of Justices David Friedman (See Profile), Sheila Abdus-Salaam (See Profile) and Nelson Roman (See Profile).
The woman, Linda Nash, was one of hundreds of people who sued the Port Authority over injuries sustained in the 1993 terrorist bombing of the World Trade Center. The plaintiffs alleged the Port Authority, which owned the World Trade Center, failed to keep the site secure.
Most of those cases were consolidated for an initial trial on liability. However, some plaintiffs, including Nash, proceeded with separate counsel.
In 2005, a jury found that the Port Authority was partly liable for the attack, and the case moved into the damages phase, in which individual plaintiffs were given trials on damages. In 2009, Nash was awarded $4.5 million plus 9 percent interest in damages.
The Port Authority never sought leave to appeal from that judgment, causing it to become final and non-appealable. However, it did seek leave to appeal a judgment in the case of another plaintiff, Antonio Ruiz. That case went to the Court of Appeals.
Nash submitted a brief to the Court of Appeals and participated in an initial oral argument, but subsequently withdrew from the appeal.
In September 2011, the Court of Appeals set aside the original verdict that the Port Authority was liable at all, finding it was shielded by governmental immunity (NYLJ, Sept. 23, 2011).
Following that ruling, the Port Authority moved to vacate the judgment in favor of Nash, arguing that the judgment was based on a finding of liability that the Court of Appeals had rejected. Manhattan Supreme Court Justice Milton Tingling (See Profile) granted that motion on May 15, 2012.
The majority affirmed.
“Since the judgment in plaintiff’s favor was based on an order that had been reversed, the trial court properly vacated the judgment,” the majority wrote, citing the First Department’s 1984 decision in McMahon v. City of New York, 105 AD2d 101, which vacated a judgment under similar circumstances.
According to the dissent, during the argument of the Ruiz case before the Court of Appeals, Judge Carmen Beauchamp Ciparick asked the Port Authority’s attorney whether a reversal of the jury’s liability finding would “unravel” already disposed cases. The attorney said that it would not, but would affect only cases “still in the pipeline,” according to the dissent.
“Nash’s case, of course, was not still ‘in the pipeline’; the time to seek reargument and/or leave to appeal from the order of this Court, entered June 2, 2011, had already expired,” the dissent said.
Manzanet-Daniels also noted that, in July 2011, while the Ruiz appeal was pending, the Port Authority asked the Court of Appeals for a declaration that the judgment in favor of Nash was stayed.
The Court of Appeals denied that motion, saying it lacked jurisdiction over Nash because she was not a party to the appeal. This further reinforced that Nash’s case was not affected by the appeal, according to Manzanet-Daniels.
“The Port Authority made a strategic decision not to appeal either the liability or the damages determination in Nash, instead prosecuting the Ruiz case,” Manzanet-Daniels said. “The Port Authority thereafter abandoned any claim that it was not liable to Nash, and represented to the Court of Appeals that a reversal in Ruiz would not affect cases like Nash’s that had been finally determined. Having failed to seek leave to appeal from Nash’s affirmed final judgment, the Port Authority cannot maintain that Nash’s case was still ‘in the pipeline’ such that Nash was bound by the Court of Appeals’ subsequent determination in the Ruiz case.”
Finally, she said that the majority erred in relying on McMahon, because in McMahon an appeal was pending from the judgment that was vacated.
The majority addressed these criticisms directly in its opinion.
“Despite this difference in procedural posture of the two cases, we believe that the underlying reasoning expressed in McMahon applies here as well,” the majority said.
“Regarding the Court of Appeals’s statement in Matter of World Trade Ctr. Bombing Litig. that the Nash action is beyond the scope of that appeal…this is simply an acknowledgment that while Nash was given permission to argue the appeal before the Court, her action was not being addressed by the Court,” the majority said. “It does not render the motion court’s action in vacating Nash’s judgment improper.”
Louis Magone, Nash’s attorney, said his client planned to appeal.
Howard Comet, a partner at Weil, Gotshal & Manges who represents the Port Authority, declined to comment.
Nash, now 69, is a former Deloitte & Touche manager who suffered traumatic brain injuries in the bombing. She lives in Colorado.
@|Brendan Pierson can be contacted at email@example.com.