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October 17, 1978

Frank W. KOHLASCH as Executor of the Last Will and Testament of Frank H. Kohlasch, Deceased and Echo Bay Boat Yard, Inc., Plaintiffs,

The opinion of the court was delivered by: WEINFELD

Plaintiffs, owner and lessee respectively of real property in the City of New Rochelle, seek damages from the defendant New York State Thruway Authority ("Authority") for injuries resulting from the discharge onto plaintiffs' property of oil, sand, debris and chemicals from a drain constructed by the defendant on adjacent lands. In addition to damages, plaintiffs seek permanent injunctive relief against a continuation of such conduct.

Plaintiffs allege various causes of action: *fn1"

 (1) The defendant's conduct constitutes a taking of property without due process and just compensation. Jurisdiction is claimed under the federal question provision of 28 U.S.C., section 1331, and the civil rights provision of 28 U.S.C., section 1343(3).

 (2) The navigable channel across plaintiffs' property has become shoal and obstructed, thereby impairing their navigational rights. Admiralty jurisdiction under 28 U.S.C., section 1333, is alleged.

 (3) A bulkhead on plaintiffs' land is being undermined and destroyed as a result of the force of the discharge from the Authority's drain. Although no specific jurisdictional base is alleged, plaintiffs rely generally on the pendent jurisdiction of the Court, in addition to the specific provisions noted above.

 (4) The adjacent waters of the Long Island Sound, the waters of the channel across plaintiffs' land, and the soil beneath the channel are being polluted and fouled by the materials discharged from the drain.

 (5) The Authority, although required to obtain a permit from the New York State Department of Environmental Conservation for the construction and maintenance of sewers, drains and the like that discharge into navigable waterways, has maliciously and intentionally refused to do so. *fn2"

 The Authority moves pursuant to Rules 12(h)(2) and (3) of the Federal Rules of Civil Procedure to dismiss each and every cause of action on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.


 Defendant's jurisdictional objection to plaintiffs' claim of an unconstitutional taking rests on the Eleventh Amendment bar to suits against the State. Under state law, exclusive jurisdiction of claims against the Thruway Authority lies in the New York Court of Claims; *fn3" since the state courts, other than the Court of Claims, would have no jurisdiction in this action, defendant contends that the federal courts "by analogy" also lack jurisdiction. But whether or not the Authority is an alter ego of the State for Eleventh Amendment purposes is a question of federal not state law. *fn4" Thus defendant's citation of Zeidner v. Wulforst, *fn5" to support the proposition that the Authority is immune from suit, is misplaced. Unlike the instant action, Zeidner was a diversity suit; the doctrine of Erie R. Co. v. Tompkins *fn6" required the court to accord the Authority the same limited immunity from suit it would receive under state law. Erie, not the Eleventh Amendment, compelled dismissal in Zeidner ; in fact, the Zeidner court specifically held that the Authority was not an alter ego of the State and thus the Eleventh Amendment was no bar. *fn7"

 We agree with the court in Zeidner that the Thruway Authority is not cloaked with sovereign immunity. The Authority has the power to sue and be sued, to hold and dispose of property, and to borrow money and issue negotiable notes and bonds. *fn8" Particularly significant is the fact that the Authority, not the State, is liable on all awards and judgments arising from claims for the value of real property taken for thruway purposes. *fn9" There being no immunity, defendant's motion to dismiss for lack of subject matter jurisdiction is denied.

 Defendant's contention that plaintiffs have failed to state a claim is more persuasive. To support a claim of a taking in violation of the Fourteenth Amendment, plaintiffs must show three elements: (1) a property interest, (2) that has been taken under color of state law, (3) without due process or just compensation. For the purposes of this motion, plaintiffs' allegations of ownership of the described property and of physical intrusion and resultant damage must be deemed true. *fn10" But the gravamen of the constitutional violation is the State's failure to provide due process and just compensation and, on this element, plaintiffs' complaint founders. They admittedly have made no attempt to avail themselves of the adequate state procedures for compensation following a De facto appropriation. *fn11"

 Our Court of Appeals has recently suggested that the bypassing of an adequate state remedy renders the complaint subject to dismissal for failure to state a constitutional violation:

It has been suggested in a somewhat analogous context by then Circuit Judge Stevens that if such a remedy does exist and has not been resorted to, no constitutional deprivation can be claimed. See Bonner v. Coughlin, 517 F.2d 1311, 1319-20 (7th Cir. 1975). Although a subsequently convened en banc court in that case rejected this approach in the context of the prisoner's suit before it, 545 F.2d 565 (7th Cir. 1976) (en banc), this theory would seem to apply with greater force to the more traditional ...

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