Fetahu v. N.J. Transit Corp.

• Decision Date: 30 September 2021
• Docket Number: 14239,Case No. 2020–02574,Index No. 158294/13
• Citation: 197 A.D.3d 1065,154 N.Y.S.3d 50
• Parties: Valbona FETAHU, Plaintiff–Respondent, v. NEW JERSEY TRANSIT CORPORATION, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1065
154 N.Y.S.3d 50

Valbona FETAHU, Plaintiff–Respondent,
v.
NEW JERSEY TRANSIT CORPORATION, Defendant–Appellant.

14239
Index No. 158294/13
Case No. 2020–02574

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

ENTERED September 30, 2021

McGivney Kluger Clark & Intoccia P.C., New York (Dean L. Pillarella of counsel), for appellant.

Law Office of Jonah Grossman, Jamaica (Lawrence B. Lame of counsel), for respondent.

Manzanet–Daniels, J.P., Kern, Oing, Rodriguez, Higgitt, JJ.

197 A.D.3d 1065

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about April 29, 2020, which denied defendant's motion to dismiss plaintiff's claim as barred by the doctrine of state sovereign immunity, unanimously affirmed, without costs.

Although defendant is an "arm of the state" of New Jersey (see

154 N.Y.S.3d 51

Karns v. Shanahan, 879 F.3d 504, 512–519 [3d Cir. 2018]), it waived its sovereign immunity defense by engaging in litigation conduct that amounted to an "inescapably [ ] clear declaration to have [New York] courts entertain this action" (see Belfand v. Petosa, 196 A.D.3d 60, 73, 148 N.Y.S.3d 457 [1st Dept. 2021] ). Defendant did not assert the defense until six years after commencement of this action, and had by then defended against the case on the merits (see Henry v. New Jersey Tr. Corp., 195 A.D.3d 444, 445, 144 N.Y.S.3d 851 [1st Dept. 2021] ). To the extent defendant contends that it could not have raised the defense before

197 A.D.3d 1066

Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. ––––, 139 S Ct 1485, 203 L.Ed.2d 768 (2019), we have already considered and rejected this contention in Belfand, 196 A.D.3d at 72–73, 148 N.Y.S.3d 457.

We decline to consider defendant's argument that the Full Faith and Credit Clause requires dismissal of the action (see Franchise Tax Bd. of California v. Hyatt, 578...