Feldman v. Port Auth. of N.Y. & N.J.

194 A.D.3d 137

144 N.Y.S.3d 701

Isaac FELDMAN etc., et al., Plaintiffs–Appellants,

v.The PORT AUTHORITY OF NEW YORK and New Jersey, Defendant–Respondent.

[And Another Action]

Appeal No. 13375-13375A

Index No. 153624/18

156869/18

Case No. 2019-281

Supreme Court, Appellate Division, First Department, New York.

ENTERED March 23, 2021

Costigan Law PLLC, New York (William F. Costigan of counsel), for appellants.

Port Authority Law Department, New York (Cheryl Alterman of counsel), for respondent.

Rolando T. Acosta, P.J., Judith J. Gische, Troy K. Webber, Lizbeth González, JJ.

Webber, J.

These wrongful death actions arise from plaintiffs’ decedents’ suicides by jumping off the George Washington Bridge (GWB). On July 26, 2017, Lael Feldman, a 24–year–old jazz singer, walked along the south walkway of the GWB and, shortly before midnight, jumped over the four-foot railing into the Hudson River, resulting in her death. The next day, Andrew Donaldson, a 49–year–old architect and father of two children, also walked along the south walkway of the GWB and jumped over the railing to his death.

In April 2018, plaintiff Marybeth Donaldson, individually and as Administrator of the Estate of Andrew Donaldson, and as parent and natural guardian of A.D. and C.D., commenced an action against the Port of Authority of New York and New Jersey (Port Authority). Plaintiffs Isaac Feldman, individually and as Voluntary Administrator of the Estate of Lael Feldman, and Marla Mase also commenced an action against the Port Authority.

In each case, plaintiffs allege that the GWB was unreasonably dangerous because the low four-foot railing on the south walkway facilitated suicides and that the Port Authority had long been aware that the bridge had become a "suicide magnet" based upon hundreds of deaths that had occurred at the bridge over the decades preceding these cases. The complaints allege that suicide attempts at the GWB have occurred at the rate of approximately 1 every 3 1/2 days, and that about 93 deaths occurred from 2009 up to 2016. The complaints assert that the Port Authority, as the owner of the GWB, "owed a duty to the public," including to "protect the public from foreseeable harm," "take reasonable steps to protect public safety," "take reasonable steps to prevent suicide," "not increase the risk of suicide by inaction," and "protect human life." Additionally, plaintiffs allege that the Port Authority "failed to exercise reasonable care in constructing, operating, and maintaining the [GWB]" and were negligent "in falling to provide for the safety and protection for vulnerable or impulsive individuals."

The Port Authority moved to dismiss the complaints for failure to state a cause of action on the ground that it was acting in its governmental, rather than proprietary, capacity when the incidents occurred and plaintiffs failed to show that it owed the decedents a special duty. The Port Authority also argued that at the time of the incidents it had neither physical custody of the decedents and the expertise to detect suicidal tendencies nor the control necessary to care for their well-being.

For the reasons stated below, we find that the motion court erred in granting the Port Authority's motion pursuant to CPLR 3211 to dismiss the complaints for failure to state a cause of action.

On a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, "the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true" ( Alden Global Value Recovery Master Fund, L.P. v. KeyBank N.A., 159 A.D.3d 618, 621–622, 74 N.Y.S.3d 559 [1st Dept. 2018] ). Further, a motion court must only determine "whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ; see Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 67, 9 N.Y.S.3d 201 [1st Dept. 2015] ).

Viewing the allegations of the complaint in the light most favorable to plaintiff, we find that plaintiffs have set forth sufficient facts which, if true, show that the Port Authority, as owner of the GWB, was acting in a proprietary capacity in the design and maintenance of the bridge, and, therefore was subject to suit under the ordinary rules of negligence applicable to nongovernmental parties.

When the liability of a governmental entity is at issue, the court must ascertain whether the governmental entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose (see Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] ). If the governmental entity's actions fall within the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Applewhite v. Accuhealth, Inc. , 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ). " ‘It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred’ " ( Miller v. State of New York, 62 N.Y.2d at 513, 478 N.Y.S.2d 829, 467 N.E.2d 493, quoting Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124 [1982] ).

In Wittorf v. City of New York, 23 N.Y.3d 473, 479, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014), the plaintiff commenced a personal injury action against the City of New York alleging its negligence in the maintenance, repair, and control over the roadway, proximately caused her to sustain injuries while she was riding her bicycle on the 65th Street transverse in Central Park. The Court of Appeals rejected the City's argument that it was performing a governmental function in the repair of the roadway. The Court found that since the City was engaged in a proprietary function in maintaining and repairing the roadway, " ‘it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties’ " ( id., quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446–447, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011] ).

Similarly, in Turturro v. City of New York, 28 N.Y.3d 469, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016), affg 127 A.D.3d 732, 5 N.Y.S.3d 306 (2d Dept. 2015), the 12–year–old plaintiff was struck by a vehicle when...