Colt v. N.J. Transit Corp.
| Decision Date | 24 May 2022 |
| Docket Number | 14967,Index No. 158309/17,Case No. 2021-01180 |
| Citation | 2022 NY Slip Op 03343 |
| Parties | Jeffrey Colt, et al., Plaintiffs-Respondents, v. New Jersey Transit Corporation, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Defendants appeal from the order of the Supreme Court, New York County (Adam Silvera, J.), entered October 6, 2020, which denied their motion to dismiss the action.
DeCotiis, FitzPatrick, Cole & Giblin, LLP, New City (John A. Stone of counsel), for appellants.
Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. New York (Brian J. Shoot and Eric K. Schwarz of counsel), for respondents.
Troy K. Webber David Friedman Jeffrey K. Oing Peter H. Moulton Tanya R. Kennedy
The constitutional dilemma concerning the doctrine of sovereign immunity continues unabated (see Taylor v New Jersey Tr Corp., 199 A.D.3d 540 [1st Dept 2021]; Fetahu v New Jersey Tr. Corp., 197 A.D.3d 1065 [1st Dept 2021]; Henry v New Jersey Tr. Corp., 195 A.D.3d 444 [1st Dept 2021]; Belfand v Petosa, 196 A.D.3d 60 [1st Dept 2021]). Like the current action, each of the cited cases involves tortious conduct perpetrated by defendant New Jersey Transit Corporation (NJT) and its employees in the operation of its commuter buses in New York City. In this action, on February 9, 2017, defendant NJT employee Ana Hernandez, operating a NJT bus on West 40th Street and Dyre Avenue, struck plaintiff Jeffrey Colt, a pedestrian crossing Dyre Avenue in the crosswalk with the pedestrian traffic signal in his favor. According to Hernandez's EBT testimony, the accident occurred when she was driving from the main platform in the Port Authority Bus Terminal in New York City, where she had just discharged her passengers, to the basement of the Terminal to pick up passengers for a return trip to New Jersey.
Plaintiff and his wife, Betsy Tsai, suing derivatively, commenced this action against NJT and Hernandez with the filing of their summons and complaint on September 18, 2017. NJT eventually served its answer, on January 5, 2018, which asserted the following affirmative defenses: "Plaintiffs' recovery, and/or claims in this litigation [] against Defendants is barred by lack of jurisdiction over NJT," "Plaintiffs' recovery should be barred as this Court lacks jurisdiction," and "Defendants are immune from suit."
In July 2020, almost three years after plaintiffs commenced the action, before the completion of discovery, and after the expiration of the New Jersey statute of limitations, [1] NJT, relying on the recent United States Supreme Court decision in Franchise Tax Bd. of Cal. v Hyatt (587 U.S. __, 139 S.Ct. 1485 [2019]), moved to dismiss the action on the ground that it was immune from suit in New York under the doctrine of sovereign immunity. In opposition, plaintiffs made several arguments: the accident occurred in New York City, NJT was not an arm of the State so as to be entitled to the sovereign immunity defense, NJT consented to suit, plaintiffs could not have commenced their action in New Jersey because New Jersey court rules require their action to be venued in "the [New Jersey] county in which the cause of action arose" (New Jersey Rules of Court 4:3-2), and NJT should be estopped from contending that it was immune from suit because it had vigorously litigated the case for nearly three years. In denying the motion, Supreme Court noted that defendants had taken "three years to raise a jurisdictionally based objection" and reasoned that, "[t]o hold NJT immune from suit for negligence in motor vehicle accidents in New York would constitute a miscarriage of justice to the victims of accidents involving NJT vehicles, which operate in New York on a daily basis."
We have previously held that NJT is an arm of the State of New Jersey and that, as such, it is entitled to invoke the doctrine of sovereign immunity (see Fetahu, 197 A.D.3d at 1065, citing Karns v Shanahan, 879 F.3d 504, 512-519 [3d Cir 2018]; see also Muhammad v New Jersey Tr., 176 N.J. 185, 194, 821 A.2d 1148, 1153 [2003] []). We have also held that its employees sued in their official capacity in which NJT would be vicariously liable for their negligence are entitled to avail themselves of the doctrine (see Belfand, 196 A.D.3d at 63 n 2, citing Karns, 879 F.3d at 519 n 5; see also N.J. Stat Ann § 59:2-2[a] []). We have further held that New Jersey's consent to suit within its borders under its Tort Claims Act is not an express consent to suit in New York or any other sister state (see Belfand, 196 A.D.3d at 69). Further, unlike Taylor, Fetahu, Henry and Belfand, in which NJT never asserted an immunity-based defense, in this case NJT pleaded such a defense in varying forms in its answer. Plainly, these defenses had to include the sovereign immunity defense, because it had been in existence since 1979 (see Belfand, 196 A.D.3d at 72, citing Nevada v Hall, 440 U.S. 410 [1979]). As we noted in Belfand, the defense was dramatically altered by Hyatt, but it did not have its genesis in that decision (id. []). These threshold findings entitle NJT to seek dismissal of this action based on the sovereign immunity defense. The final hurdle that NJT must overcome is whether it expressly and unambiguously waived its sovereign immunity defense (id. at 73).
Under the procedural circumstances of this action, NJT did not undertake a litigation strategy that could be deemed an express, voluntary waiver of this defense (see Belfand, 196 A.D.3d at 70). Although three years had elapsed since the filing of the complaint, discovery in this action had not been completed, the note of issue had not been filed, plaintiffs' motion for summary judgment had not been decided, no pretrial conference or trial date had been scheduled, and this action was never tried. Under these circumstances, NJT did not expressly and unambiguously waive the sovereign immunity defense. This finding, however, does not end the inquiry. [2] Rather than making a clear pronouncement on sovereign immunity, unlike the dissent's invocation of the Supremacy Clause of the U.S. Constitution to justify embracing Hyatt, we see unresolved issues (see Belfand v Petosa, 196 A.D.3d 60).
Plaintiffs argue that they could not have commenced their action in New Jersey under New Jersey law. "[We] could not have brought suit in New Jersey even if [we] had wanted to do so inasmuch as New Jersey law requires that suit against a municipal corporation be commenced in the county in which the cause of action arose (..., citing NJSA § 4:3-2.)" Plaintiffs' straightforward legal argument requires no elaboration. NJT does not challenge this assertion in its reply brief, or otherwise address it, merely arguing that the venue rule should not be deemed as consent to suit in New York.
There can be no dispute that NJT is subject to a negligence suit akin to this action in the courts of New Jersey under the state's Tort Claims Act (see Stergios v New Jersey Tr. Corp., 2017 WL 3861375, 2017 N.J. Super Unpub LEXIS 2214 [NJ A.D. 2017]). That said, New Jersey's Tort Claims Act provides that "[t]ort claims under this act shall be heard by a judge sitting without a jury or a judge and jury where appropriate demand therefor is made in accordance with the rules governing the courts of the State of New Jersey" (NJ Stat Ann § 59:9-1). New Jersey Court Rule 4:3-2(a)(2) (Venue in the Superior Court) provides that "[v]enue shall be laid by the plaintiff in Superior Court actions as follows:... actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose." The import of this statute and court rule is clear: Although their negligence action is the kind permitted under the New Jersey Tort Claims Act, plaintiffs cannot commence an action in New Jersey because the cause of action arose outside its borders.
The dissent does not dispute that plaintiffs are foreclosed from suing in New Jersey. Instead, the dissent relies on New Jersey Court Rule 1:1-2(a), which provides that, "[u]nless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Based on this discretionary principle, the dissent suggests that there is no doubt that New Jersey courts would relax or dispense with the venue requirement in order to sue NJT in a New Jersey county convenient to the latter should NJT object to the venue of the action. We are not as confident of such an outcome.
As to Rule 1:1-2(a), it is clear that there must be a pending action in a New Jersey court for venue to be "relaxed" or "dispensed with." The problem in our case is that plaintiffs have nowhere to commence their action in New Jersey, which renders the rule meaningless. We believe that NJT would vigorously object to any litigation in New Jersey for injuries arising outside of New Jersey for three reasons. First, NJT could eliminate this issue by simply consenting to suit in New Jersey courts for injuries sustained in New York, as it has already done under the New Jersey Tort Claims Act for injuries occurring within the state. Its...
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