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Lafever v. NY/NJ Port Authority

Superior Court of New Jersey, Appellate Division

July 29, 2013

RICHARD LAFEVER, Plaintiff-Respondent,
v.
NY/NJ PORT AUTHORITY, Defendant-Appellant, and CONTINENTAL AIRLINES, and ABM JANITORIAL SERVICES NORTHEAST, INC., Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2013

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1943-11.

Margaret Taylor Finucane, attorney for appellant (Jonathan P. Meinen, on the brief).

Kamensky Cohen & Riechelson, attorneys for respondent (Jerrold Kamensky, on the brief).

Before Judges Reisner and Yannotti.

PER CURIAM

By leave granted, the Port Authority of New York and New Jersey (Port Authority) appeals from an order entered by the Law Division on June 22, 2012, denying its motion to dismiss plaintiff's complaint, and an order entered on August 24, 2012, denying its motion for reconsideration. For the reasons that follow, we reverse.

Plaintiff filed a complaint on July 26, 2011, against the Port Authority, Continental Airlines (Continental), and ABM Janitorial Services Northeast, Inc. (ABM), alleging that he sustained serious and permanent personal injuries at Newark International Airport on July 15, 2010, as a result of defendants' carelessness and negligence. Thereafter, the court dismissed the complaint, apparently because defendants had not filed their answers within the time required by the court rules and plaintiff did not apply for default. The court later reinstated the complaint but entered default against ABM.

On April 2, 2012, the Port Authority filed a motion to dismiss the claims against it pursuant to Rule 4:6-2(a), arguing that the court did not have jurisdiction to entertain the complaint because plaintiff had not complied with N.J.S.A. 32:1-163, which provides that lawsuits against the Port Authority must be commenced within one year after the accrual of the cause of action. Plaintiff opposed the motion. Plaintiff maintained that he substantially complied with the statute.

In support of this argument, plaintiff submitted a certification of his attorney, who asserted that on July 15, 2010, plaintiff slipped and fell in the men's restroom at the airport. Counsel stated that immediately following the incident, an accident report was filed with the Port Authority and forwarded to the agency's claims administrator, safety engineering supervisor, inspection and safety division, and risk supervisor.

Plaintiff's counsel indicated that a police report had been issued regarding the incident. Counsel said that a notice of claim was filed on plaintiff's behalf on September 8, 2010. According to counsel, on September 20, 2010, a representative of the Port Authority informed Continental that the claim fell within the scope of Continental's agreement with the Port Authority, and requested that Continental handle the claim.

Counsel also stated that from her review of the file:

it appears that there was some confusion as to whether to file suit against the Port Authority of New York and New Jersey due to its September 20, 2010, correspondence to Continental. Additionally, it appears that [p]laintiff''s file was transferred ...

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