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RAYMOND INTL. INC. v. THE M/T DALZELLEAGLE

November 4, 1971

RAYMOND INTERNATIONAL INC., Plaintiff,
v.
The M/T DALZELLEAGLE, her engines, boilers, etc., and McAllister Brothers Inc., Defendant and Third-Party Plaintiff, v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Third-Party Defendant


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

On April 10, 1970, plaintiff's derrick barge CENTURY in tow of defendant-third party plaintiff McAllister Brothers Inc.'s ("McAllister") tug, DALZELLEAGLE, collided with the Marine Parkway Bridge, owned and operated by third-party defendant Triborough Bridge and Tunnel Authority ("Triborough"). Basing its claim upon our admiralty jurisdiction (Rule 9(h), F.R. Civ. P.), plaintiff sued McAllister for having caused the collision. On August 7, 1970, 119 days after the collision, McAllister impleaded Triborough. Triborough now moves to dismiss the third-party complaint under Rule 12(b)(6), F.R. Civ. P., on the ground that it fails to state a claim under which relief can be granted, and under Rule 56(b), F.R. Civ. P., for summary judgment.

 Triborough contends that, as a state created agency and a public benefit corporation performing a state function it is not subject to suit by virtue of the provisions of the Eleventh Amendment to the United States Constitution, which reads:

 
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

 Alternatively, Triborough argues that it has conditionally waived its immunity under section 50-e of the General Municipal Law of New York, McKinney's Consol. Laws, c. 24, which provides that in any claim against Triborough notice must be given to it within 90 days after the claim arises, and that since defendant McAllister failed to notify it within 90 days of the collision, its third-party complaint must be dismissed.

 Plaintiffs *fn1" contend that Triborough is not the "alter ego" of the State of New York but is an autonomous corporation and, accordingly, does not come within the aegis of the Eleventh Amendment. With regard to Triborough's second contention, plaintiffs do not dispute the fact that they did not file their claim within 90 days, as required by section 50-e of the General Municipal Law; but, they argue, section 50-e has no application in a maritime case. We agree with plaintiffs on both counts.

 THE IMMUNITY CLAIM

 The critical determination of whether Triborough constitutes the alter ego of the state depends on Triborough's relative dependence on or independence of the state. Therefore it is necessary preliminarily to examine the pertinent sections of the Public Authorities Law of New York (McKinney's Consolidated Laws, c. 43-A, Vol. 42, Title 3) which created the Triborough and delineates its powers and duties.

 1. Triborough is a consolidation of the former Triborough Bridge Authority, the New York City Parkway Authority, and New York City Tunnel Authority. Public Authorities Law, McKinney's Consolidated Laws, Vol. 42, § 552-a(1)(a).

 2. Triborough is a "body corporate and politic constituting a public benefit corporation." § 552(1)

 3. When all the liabilities of Triborough are met, all rights and properties vest in New York City. § 552(2)

 4. Triborough itself retains full jurisdiction and control over all its projects, including tolls and revenues collection. § 552(2)

 5. Triborough is liable for the debts and liabilities it incurs. § 553(1)

 6. Triborough is required to acquire all real property in the name of New ...


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