Follow the Money to Find New York Justice

Outside Judges Are Well Prepared for WTC Reargument
The New York Law Journal by Joel Stashenko  -  August 25, 2011

ALBANY, NY - For the first time in a decade, outside judges joined the Court of Appeals for an oral argument yesterday so that the Court could muster a majority in a dispute over the liability of the Port Authority of New York and New Jersey for the 1993 terrorist bombing of the World Trade Center.  Both Justices A. Gail Prudenti, presiding justice of the Appellate Division, Second Department, and Thomas E. Mercure, acting presiding justice of the Third Department, asked numerous questions of the litigants' lawyers during the 50 minutes the Court allotted for discussion of Matter of World Trade Center Bombing Litigation Steering Committee v. The Port Authority of New York and New Jersey, 217.  Judge Carmen Beauchamp Cirparick, who presided over yesterday afternoon's one-case session, introduced her colleagues for the case.  "They've had a lovely summer reading our record," Judge Ciparick said. She later noted that both had watched a video of the first round of oral arguments the Court heard on June 1.  Both Chief Judge Jonathan Lippman and Judge Robert Smith had recused themselves. On June 23, Judge Ciparick, the senior judge of the five left on the case, had "vouched in" Justices Prudenti and Mercure to sit with the Court (NYLJ, June 24). It was the first time the Court had invited outside judges onto the bench since it enlisted then-First Department Justice Joseph P. Sullivan in January 2001 for Shaw v. State Commission on Judicial Conduct.  At that time, the practice was not as uncommon as it has become over the past decade. On three other cases, in Schultz v. Harrison in April 1997, Manocherian v. Lenox in August 1994 and Jensen v. General Electric in September 1993, the Court vouched in two judges each time.  By asking Justices Prudenti and Mercure to join them, the other judges signaled that there was no agreement among at least four of the five judges remaining in the case. To be valid, Court decisions require a minimum of four judges in the majority.  The Court is permitted to reach out to any Supreme Court justice to sit on the bench.  Judges Ciparick, Victoria A. Graffeo, Susan Phillips Read, Eugene F. Pigott Jr. and Theodore T. Jones Jr. sat with Justices Prudenti and Mercure yesterday.  They heard now-familiar arguments in the case centering on the extent of liability for the 1993 bombing, in which terrorists drove a bomb-laden rental truck into a parking garage beneath the World Trade Center towers and detonated the explosives.  Six people died and nearly 1,000 were injured. More than 600 plaintiffs later filed 174 negligence actions against the Port Authority, which owned the Trade Center complex in 1993.  A Manhattan Supreme Court jury ascribed 68 percent of the fault for the bombing to the Port Authority for alleged security lapses and 32 percent to the terrorists. The Port Authority has contended that it is illogical to assign more blame to the agency than to the terrorists.  Yesterday, attorney Richard A. Rothman argued on behalf of the Port Authority that both statutes and court precedents recognize immunity from liability from an intentional act of terrorism.  "Didn't your own witness…say that the most effective measure to take to reduce the threat of a bombing was in the public parking garage and isn't that a duty that may have been owed to your tenants?" Justice Prudenti asked.  "The answer is no," Mr. Rothman replied. "The decision as to what to do in the garage was a decision that was made based on many meetings at the highest levels of the Port Authority in conjunction with law enforcement agencies. It is difficult to conceive of a more discretionary decision designed to protect the public. That is not something that would permit liability to assess."  Mr. Rothman continued that courts have recognized that the more complex the security issues that government agencies face, the stronger their immunity protections become.  "The reason is, we don't want courts and juries second-guessing exactly the kinds of discretionary decisions that were made here," Mr. Rothman, of Weil, Gotshal & Manges, argued. "It will skew the allocation of resources, it will skew the decision-making process. …In the end, we will all be less safe, not more safe, if we permit this kind of second-guessing to go on."  Victor Kovner, who is representing injured plaintiff Antonio Ruiz and the investment house Cantor Fitzgerald, countered that the Port Authority ran the Trade Center, including its underground parking lots, in the same fashion as any commercial proprietor. As such, it owed the same duty to protect the safety of people using the complex as would any private landlord, he said.  Mr. Kovner, of Davis Wright Tremaine, contended that the Port Authority's negligence lies chiefly in allegedly ignoring eight years of reports leading up to 1993 that identified the underground parking areas as a major security weakness.  "Isn't the question not just the choice that was made, but whether informed, reasoned discretion was exercised?" Justice Mercure asked. "In other words, they could make a determination, exercising their discretion based on all the reports not to close the parking garage?"  Mr. Kovner responded, "The discretion only arises if it's a governmental decision. But the first question and the issue in this case is [whether] the action or omission [is] proprietary or governmental. If it's proprietary, it is the same standard as the private landlord."  Brian J. Shoot of Sullivan Papain Block McGrath & Cannavo argued on behalf of the World Trade Center Litigation Steering Committee.  Both Mr. Rothman and Mr. Kovner agreed after the arguments that Justices Prudenti and Mercure were "well prepared."  Judges do not explain why they recuse themselves. But Judge Lippman's conflict was obvious because he wrote the First Department ruling, which upheld the jury's finding of liability against the Port Authority (NYLJ, April 30, 2008).  Judge Smith has not disclosed his reason for not participating in the case.  Joel Stashenko can be contacted at jstashenko@alm.com.