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Washington Heights Optical, Inc. v. Port Authority of New York and New Jersey

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 23, 2010

WASHINGTON HEIGHTS OPTICAL, INC., PLAINTIFF-APPELLANT,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 27, 2009, which denied plaintiff's motion for a Yellowstone injunction, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Mazzarelli, Renwick, DeGrasse, Manzanet-Daniels, JJ.

602184/09

Plaintiff brought this action to enjoin the Port Authority from terminating its lease (First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]). The consent of the States of New York and New Jersey to suits against the Authority (McKinney's Uncons Law of NY § 7101) does not extend to suits seeking to restrain or enjoin the Authority unless brought by the attorney general of either State (McKinney's Uncons Laws of NY § 7105) and the courts lack subject matter jurisdiction over this action (see Matter of New York City Ch., Inc. of Natl. Elec. Contrs. Assn. v Fabber, 73 Misc 2d 859, 864 [1973], affd 41 AD2d 821 [1973]; see also Matter of Lewis v Lefkowitz, 32 Misc 2d 434 [1961]).

While Court of Claims Act § 8 provides an exception to immunity for state agencies acting in a propriety capacity (see Miller v State of New York, 62 NY2d 506, 511 [1984]), there is no analogous provision governing the Authority, a bi-state agency resident in both jurisdictions (McKinney's Uncons laws of NY § 7106.

In view of the foregoing, plaintiff's remaining arguments are academic.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100223

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