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Wood v. Dic/Underhill

Decided: August 27, 1975.

MARK WOOD, PLAINTIFF,
v.
DIC/UNDERHILL AND UNIVERSAL BUILDERS SUPPLY CO., BLITMAN CONSTRUCTION CO., PORT AUTHORITY OF N.Y. AND N.J., A/K/A JOURNAL SQUARE TRANSPORTATION CENTER, AND E. MAKISH, DEFENDANTS



Bilder, J.s.c.

Bilder

This suit arises from an accident which occurred on December 13, 1972 in connection with the construction of a project for the Port Authority of New York and New Jersey (hereinafter called Port Authority). Plaintiff was a carpenter employed by a subcontractor and alleges he was injured when a scaffold upon which he was working broke, causing him to fall some 30 feet.

Plaintiff pursued his workmen's compensation remedies against his employer, the subcontractor. Thereafter he instituted the instant suit, naming as defendants the owner, the general contractor and a safety inspector -- third parties he alleges to be liable to him for his injuries. The right of workmen's compensation is not a bar to such a third-party action. N.J.S.A. 34:15-40.

This is a motion by the defendant Port Authority for a dismissal on the ground that suit is barred by virtue of plaintiff's failure to comply with the provisions of N.J.S.A. 32:1-163 which requires that suits against the Port Authority be commenced within one year after the date the cause of action accrues. As noted, the accident occurred on December 13, 1972 and suit was not instituted against the Port Authority until January 14, 1974. It is well settled that an action for personal injury accrues at the time of the accident. Tortorello v. Reinfeld , 6 N.J. 58, 65 (1950).

N.J.S.A. 32:1-163 provides as follows:

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. The provisions of this section shall not apply to claims arising out of provisions of any workmen's compensation law of either State.

It is plaintiff's contention that his claim in this suit against the Port Authority arises out of the provisions of our Workmen's Compensation Act and is therefore saved by the last sentence of N.J.S.A. 32:1-163.

Initially it should be noted that the Port Authority is the creature of a bi-state compact requiring concurrent legislation of both New York and New Jersey. "Since the Authority is an instrumentality of New York and New Jersey, it is eminently desirable, of course, that the path of judicial decision in the courts of the two states be a common one." Moonachie v. Port of N.Y. Auth. , 38 N.J. 414, 425 (1962).

Prior to 1951 the Port Authority was immune from suit. See Port of N.Y. Auth. v. Weehawken Tp. , 27 N.J. Super. 328, 333 (Ch. Div. 1953); Trippe v. Port of New York Auth. , 14 N.Y. 2d 119, 123, 249 N.Y.S. 2d 409, 410, 198 N.E. 2d 585, 586 (Ct. App. 1964). By joint legislation which became effective June 13, 1951, sovereign immunity was waived and consent was given to suits against that agency. N.J.S.A. 32:1-157 et seq.; N.Y. Unconsolidated Laws ยง 7101 et seq. (McKinney 1951). As an act in derogation of sovereign immunity this legislation must be strictly construed. Rao v. Port of New York Auth. , 122 F. Supp. 595 (E.D.N.Y. 1954), aff'd 222 F.2d 362 (2 Cir. 1955). See State v. Court of Common Pleas , 1 N.J. 14, 22 (1948).

Examination of our case law discloses only one decision dealing with the saving sentence exempting claims arising out of provisions of our ...


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