Opinion
2020–09716, 2021–03847 Index No. 518809/18
10-18-2023
Vakhobjon NIZOMOV, et al., appellants, v. Michael D. JONES, et al., respondents.
Shulman & Hill, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Christopher J. Soverow ], of counsel), for appellants. Ruprecht, Hart, Ricciardulli & Sherman, LLP, New York, NY (Jessica M. Anderson of counsel), for respondents.
Shulman & Hill, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Christopher J. Soverow ], of counsel), for appellants.
Ruprecht, Hart, Ricciardulli & Sherman, LLP, New York, NY (Jessica M. Anderson of counsel), for respondents.
BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 23, 2020, and (2) an order of the same court dated May 6, 2021. The order dated November 23, 2020, granted the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint. The order dated May 6, 2021, insofar as appealed from, in effect, upon reargument, adhered to the determination in the order dated November 23, 2020, granting the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint, and denied that branch of the plaintiffs’ motion which was, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey.
ORDERED that the appeal from the order dated November 23, 2020, is dismissed, as that order was superseded by the order dated May 6, 2021, made upon reargument; and it is further,
ORDERED that the order dated May 6, 2021, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiffs allege that, on or about August 3, 2017, at Beach Street and Greenwich Street in New York County, the defendant Michael D. Jones, while acting within the scope of his employment with the defendant New Jersey Transit Corporation (hereinafter NJT), and while operating a motor vehicle owned by NJT, struck a vehicle operated by the plaintiff Vakhobjon Nizomov, resulting in personal injuries to Nizomov. Thereafter, Nizomov, and his spouse suing derivatively, commenced this action to recover damages for personal injuries resulting from the accident. The defendants moved pursuant to CPLR 3211(a)(2) to dismiss the complaint, asserting that, pursuant to the holding of the United States Supreme Court in ( Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, 139 S.Ct. 1485, 203 L.Ed.2d 768 ) (hereinafter Hyatt ), an arm of a State, such as the defendants, may not be sued by a private party in the courts of a different state without the defendants’ consent. By order dated November 23, 2020, the Supreme Court granted the defendants’ motion. Thereafter, the plaintiffs moved, among other things, for leave to reargue their opposition to the defendants’ motion, or, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey. By order dated May 6, 2021, the court, in effect, upon reargument, adhered to its prior determination granting the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint, and denied the plaintiffs’ request for alternate relief. The plaintiffs appeal.
In Hyatt , the United States Supreme Court held that "States retain their sovereign immunity from private suits brought in the courts of other States" ( Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, 139 S.Ct. at 1492 ). Hyatt overruled ( Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182, 59 L.Ed.2d 416 ), in which the Court held that "[n]othing in the Federal Constitution authorizes or obligates" a forum state to respect the sovereign immunity of a defendant sister State ( id. at 425–427, 99 S.Ct. 1182 ). However, a state can waive sovereign immunity only under limited circumstances, including by the enactment of legislation or by specific conduct during litigation (see Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 ; College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675–676, 119 S.Ct. 2219, 144 L.Ed.2d 605 ).
Contrary to the plaintiffs’ contention, the defendants did not consent to suit or waive their sovereign immunity in New York by virtue of their extensive operations within this State (see College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. at 676–691, 119 S.Ct. 2219 ). "A State's consent to suit must be ‘unequivocally expressed’ in the text of the relevant statute" and therefore "may not be implied" ( Sossamon v. Texas, 563 U.S. 277, 284, 131 S.Ct. 1651, 179 L.Ed.2d 700, quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 ; see also Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 ). Although NJT is a public entity subject to the New Jersey Tort Claims Act (hereinafter the TCA) (see Maison v. New Jersey Tr. Corp., 245 N.J. 270, 288–289, 245 A.3d 536, 547 ; Muhammad v. New Jersey Tr., 176 N.J. 185, 194, 821 A.2d 1148, 1153 ), "New Jersey's consent to suits in its state courts under [the TCA] is not an express consent to suit in courts of a sister state" (see Belfand v. Petosa, 196 A.D.3d 60, 69, 148 N.Y.S.3d 457 ; Hyatt v. County of Passaic, 340 Fed.Appx. 833, 837 [3d Cir.] ; see also NJ Stat Ann §§ 59:9–1, 59:9–7 ). Furthermore, under the facts and circumstances of this case, the defendants’ conduct during this litigation did not amount to a waiver of sovereign immunity (see Colt v. New Jersey Tr. Corp., 206 A.D.3d 126, 129, 169 N.Y.S.3d 585 ; cf. Taylor v. New Jersey Tr. Corp., 199 A.D.3d 540, 541, 158 N.Y.S.3d 58 ; Fetahu v. New Jersey Tr. Corp., 197 A.D.3d 1065, 1065, 154 N.Y.S.3d 50 ; Belfand v. Petosa, 196 A.D.3d at 72–73, 148 N.Y.S.3d 457 ; Henry v. New Jersey Tr. Corp., 195 A.D.3d 444, 445, 144 N.Y.S.3d 851 ).
The plaintiffs failed to demonstrate that the defendants, as proxy for the state of New Jersey, adopted a policy of hostility to the public acts of New York in derogation of the Full Faith and Credit Clause of the United States Constitution (see Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. 171, 176, 136 S.Ct. 1277, 194 L.Ed.2d 431 ; Carroll v. Lanza, 349 U.S. 408, 409–413, 75 S.Ct. 804, 99 L.Ed. 1183 ). Conversely, the plaintiffs have not shown that, in deferring to the sovereignty of New Jersey and its courts in accordance with Hyatt , New
York's own legitimate public policy has been unconstitutionally infringed upon (see Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, 139 S.Ct. at 1497 ; Broderick v. Rosner, 294 U.S. 629, 642–643, 55 S.Ct. 589, 79 L.Ed. 1100 ). "The Constitution does not merely allow States to afford each other immunity as a matter of comity; it embeds interstate sovereign immunity within the constitutional design" ( Franchise Tax Bd. of Cal. v. Hyatt, ––– U.S. ––––, 139 S.Ct. at 1497 ).
The Supreme Court properly rejected the plaintiffs’ request, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey (see generally Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 ; Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 520, 505 N.Y.S.2d 24, 496 N.E.2d 183 ). Furthermore, the plaintiffs’ speculation that the defendants may have waived their sovereign immunity by contract did not provide a sufficient basis to deny the defendants’ motion to dismiss the complaint (see generally Peterson v. Spartan Indus., Inc., 33 N.Y.2d 463, 465–467, 354 N.Y.S.2d 905, 310 N.E.2d 513 ; Karpovich v. City of New York, 162 A.D.3d 996, 998, 80 N.Y.S.3d 364 ; Rochester Linoleum & Carpet Ctr., Inc. v. Cassin, 61 A.D.3d 1201, 1202, 878 N.Y.S.2d 219 ).
The plaintiffs remaining contentions are either improperly raised for the first time on appeal or without merit.
BARROS, J.P., MILLER, GENOVESI and WAN, JJ., concur.