Today, Lawrence McGivney, managing partner of the firm’s New York City office, presented arguments before New York’s highest court, the Court of Appeals, regarding an issue of constitutional magnitude – interstate sovereign immunity. The question before the Court is whether an instrumentality of the State of New Jersey, responsible for transit operations which annually shuttles millions of commuters between New Jersey and New York can be sued in New York’s courts for claims arising from accidents occurring in New York. The issue has been litigated for the last several years in New York’s trial and appellate courts, following the decision of the United States Supreme Court in Franchise Tax Board of California v. Hyatt, 587 U.S. ____ (2019) (also known as Hyatt III), which concluded that interstate sovereign immunity was embedded in the United States Constitution. Today’s oral argument was the culmination of many months of collaborative team research, analysis and writing by our appellate team members: Mindy Kallus, Tom Emala and Lawrence McGivney.
New York’s intermediate appellate courts, known as the Supreme Court, Appellate Division, have affirmed the sovereignty of the defendant in these actions, but held that the right to interstate sovereign immunity was waived by the litigation conduct of the entity. As such, the question of immunity, and whether and how the same can be waived, were highlighted during today’s oral arguments. The firm looks forward to the decision of the Court of Appeals and to vindicating the constitutionally recognized rights of its client.