prior to this case no court had ever invalidated a new york claim revival statute such as jimmy nolan's law and the court below erred in being the first this court should reverse or failing that certify to the new york court of appeals for two reasons first battery park city authority had no right to assert this due process challenge and second even if it did jimmy no one's law satisfies any potentially applicable requirements this court can address those issues  either order i'd like to start this morning for the second under any applicable due process standard to me known as law it was within the legislature's authority to protect the rights of injured post nine eleven responders deprived of the chance of compensation by restrictive notice of claim provisions applicable only to government entities the law has a limited and tailored measure it revived for a narrow window claims against a small class of defendants by a small class of workers those workers were people who one responded to the site of an unprecedented disaster to receive false assurances of workplace safety and inadequate equipment and instructions and three as a result wound up suffering slow developing respiratory conditions the nature and causes of which are often far from readily apparent but there is a discovery rule with wise to their cause of action or not that's true but they just to be clear that my my my question is this ninety day notice of claim provision rahm's from the time when they discover their injuries not from the time of exposure that's correct however discovering the injury is equivalent to the onset of symptoms and so having symptoms is not necessarily sufficient notice that i have symptoms that are a serious respiratory or similar condition that is a result of work that i did  nine eleven workplace and that in the ninety day restriction is quiting is extremely short i mean if this were to your were five years that your limitations running from the time of discovery we might have a very this exactly is but other cases that say because this is a governmental entity with a ninety day claim notice in addition to the statue limitations due process is implicated even more against them in their favor some of it in the words of these revival statutes that say there's a group of people who missed the statute of limitations and there's plenty of those but they usually just deal with cases where there's a two or three year or even six years that statue limitation and asking where you are where cases though where they discuss this particular problem if it's against like a municipality or a state or a governmental entity which requires  but the probably just judge let's just point out is that ninety days is what different from two years or three years other cases that talk about the due process issues in the ninety day notice of claim context you know you're in a we're not familiar with any of these you know each cases sui generis and frankly the legislature doesn't do this terribly often however as i believe your honor suggested that the ninety day factor is an important consideration that w s in favor of what the legislature did in this case relaxing that requirement that really is not a lot of time to necessarily put the pieces together particularly for workers who had been told that their workplaces were safe they hadn't been given adequate safety equipment or safety instructions or safety instructions in their own language they didn't necessarily they wouldn't have been in a position to know that  the fact that these also are public corporations again you know weighs in favor of the reasonableness of what the legislature did it didn't apply a statute that revived claims as against all defendants other defendants who had simply a three year statute of limitations without the ninety day notice claimed requirement went affected by this law legislature was trying to help a particularly affected and particularly deserving class of workers as follows it would be exceedingly unlikely that there would be cases exactly like this because first of all as you say the legislature there are very few examples of revivals of lapsed claims by the legislature in the first place and because of your other argument the most common type of defendant that has the ninety day notice of claim would be municipal corporations and i guess there is no question that the they would not be able to raise this constitutional argument that this defendant is trying to distinguish itself as being a different type of public corporation but it is the no capacity to sue or all would be squarely on point for cities and and other subdivisions that would be the most common type of defendants but that's correct your honor and to be sure we vigorously dispute that there is any mccann case that we describe in our briefs there was there were two revival statutes and one of the specifically gave the right to injure workers who suffered from a slow onset disease to bring suit upon connecting the nature of their injuries to they exposure in the workplace that even in that context the court has validated and recognized the legitimacy of the principle the floods later applied here that even if you were experiencing symptoms you wouldn't necessarily be in a position to there's no question we're standing here why why was there standing there but not yet but not here i mean there are several responses to that starting with the footnote itself it contains a citation and by the way this wasn't contested in the court of appeals so even the footnote is itself dicta in any event it contains a citation to matter of cheer versus own bill central school district and a citation to a page in which that court said we recognize that there is an exception where quote municipal challengers assert that if they are obliged to comply with the state statute they will by that very compliance be forced to violate the constitutional prescription unquote matter of jeter versus only center school district relied on prior authority the alan  case of the new york court of appeals which was the same thing the same authority that special term cited in patterson vs kerry and the footnote says we agree with special terms so the exception that there were a lying on is that the public authority in that case by not charging the toll that it had said in other words by complying with the statute that required it to pay a lower total was violating the constitution they were violating the specific concrete constitutional rights of the bondholders but how much of that had to do with standing so it battery park city authority is being sued because it's own la not necessarily a governmental function as opposed to regulating whether you could have an illuminated sign in the building governmental function was in that case looking at what patterson was doing if they were collecting tolls wasn't necessarily a government function or how is it turning on that factor it's with respect your honor it's not at all well you like the highway tours and sounds to to tional challenge means that they had standing i guess i didn't get there there is an exception to the general wall that even counties and cities and other political subdivisions have standing if they can claim that by complying with the state law they will be from selves forced to violate the constitution aren't they but this i thought of course they have standing and they're they're being unsuited for for money and they're being harmed by this this isn't in this case i  thought this case was not about standing the new york court of appeals cases or use different formulation sometimes described as capacity sometimes described as standing sometimes described  with the basics this is not about article three standing abs yes ok so this cases is not about article three standing at all right now what was patterson a case about article three type standing in special term or was it a case about this particular exemption it was a case about this particular exemption that was a suit that was brought by bondholders yes claiming that the rescinding of a tol all the authority had passed was a violation of a specific legislative permission written into the bonds that promised them the authority would have the sole authority discretion to raise told yes and then the argument made in that case that this doctrine that prohibits public corporations from challenging actions of the state legislature was imp court of appeals should be taken in your view one it says we agree with special term to be ruling on the very issue that is present in this case under the circumstances of that which may be distinguish able but it's this argument that they were addressing in that footnote in that footnote they were addressing yes the special exception that allows subdivisions of the state to bring constitutional challenges to state legislation and they did that in a footnote and with respect to an issue that was not being raised before the court of appeals  didn't you know i mean let me turn to a slightly different version of the issue that's before us as a practical matter do you think are you taking the position that the law of new york is so clear in your favor that we ought to decide this issue of the capacity to sue issue ourselves or is your primary argument that the law is sufficiently murky that we ought to certify this question to the new york court of appeals we believe the law is sufficiently clear that this court can resolve that issue in our favor itself however if it has any doubt whatsoever about whether the state is correct then this is an issue that is almost uniquely suited for sort of case because this is about the constitutional structure of government in the state of new york it is about on the merits and the new york state constitutional provision and the standing in quotes issue is also something that inherently concerns rights to sue the state of new york by its own creatures and what do we know about that or want to we have to do with that in a certain way and it isn't that the argument for certification that is absolutely the argument for certification is the truest of the second issue too because this is a due process challenge only a little under the new york state constitution to use you know the same eagerness to have a sort of question as well as and so on clear again we don't think that it's unclear at all however the district court obviously disagreed and if this court has any doubt we would a more arguably more lenient standard of review in favor of the state and then you have the post holocaust case which might or might not change the rule i mean i think you couldn't her prove that case as being well they're just saying this is a really extreme injustice of course the legislature can do it not necessarily changing the liberal standard of review but then you have a third case that explicitly says we're not deciding what the whether that changes the standard of review which seems to me to leave the whole methodology that we should apply up for grabs would you disagree with that i understand your point that no one has ever struck down one of these statutes but the methodology that we're supposed but they have new yorker appeals has certainly refused to follow federal precedent on the federal due process clause which says there's just no i'm with this kind of statute they've got a rule but we don't know what the rule  well actually we would take issue with whether the new york courts have definitively decide that we're not said we're not going to file the federal rule that they've said is we don't have to we don't have to determine that question because there have been sufficient review it in a fairly generous standard it was done in one nine hundred twenty s case the law could be there was a fairly spec standard which just happens to have been met a couple of times in our view even that standard is met he that's the reason certification isn't necessary to be clear we do not oppose certification if the panel thinks any of this is is in doubt but  extraordinary circumstances of this case involving injured post nine eleven workers who came and got this city up and running again and the desire of the legislature to make sure that those individuals would have a fair playing field in terms of seeking compensation for their injuries simply by removing a tiniest bar to a defense raised by its public corporations easily m then why do you have the ninety day might notice a crime rule at all if you're not sufficiently a public entity is there anybody who is not a public entity who gets the benefit of that there is no public benefit corporation or inception as being and it is that are separate and distinct from the state the simple difference between the state's position that battery park city authority is a subdivision of the state and the position we take here as a public authority is that a subdivision of the state can't do things that the state is not entitled to on its own public authorities can public authorities can loan money to private businesses to enable develop the state isn't the one thing that's clear about anything is clear in the new york court of appeals case law on this that there ought to be a particular arise inquiry into which what kind of public benefit corporation it is and what kind of statute it is that is correct is a particular ice inquiry which the discrete court performed and found that the actions taken by battery park city in this context did not quite qualify as a governmental entity forensic for this purpose for this purpose yet they were little years here so first i want to try and clarify your your point i thought you were saying a moment ago that very park city authority just flat automatically as a public benefit corporation not subject to the the bar on  suits against the state period end of story we go home as opposed to saying it may be or it may not be you need to do a particular ised inquiry the district court did the particular that wasn't so in black river black river interesting you're on you know a year on it is not a public benefit corporation despite the fact that it's been termed them both on its own website and in subsequent cases if you look at the enabling legislation they were initially in one nine hundred fifty a river regulating district which is not a public authority in when the enabling legislation was revised they became a municipal corporation which both of which are clearly subdivisions of the state and while the attorney general's office and other courts of have cited them as be as black river as being a public authority they've never been a public authority has not the court of appeals in other contexts assessed engaged in this particular honest inquiry with respect to public benefit corporation that they have in for instance the john grace case which you would think construction of buildings and on sunni campuses on behalf of the state by the state construction fund would be a governmental function in john grace a court of appeals found that it was not and that john grace was a separate no autonomy of course that's the same kind of argument that the state is making on the merits but you've never lost one of these cases where people are corporations like yours have never lost one of these cases just like they're saying the legislature has never lost the revival case my problem is there's always a first time at least if the law opens that possibility and so the question is what is the standard of review we do the analysis and if there question about even al we do the analysis if you're taking the position that actually we should construe the new york court of appeals cases as saying never is a public benefit corporation certification do you think this is a case which is so clear for you on either of these grounds you need both i guess so clear for you on both of these grounds that we should just affirm the district court without seeking the benefit of the views of the are going to be we have taken the position both in our brief and here today around that we think it's sufficiently clear for this court to decide it but we do not oppose certification o park city because in each of the cases that you mentioned whether it's robinson whether it's going to ski whether it's hymowitz each one of those cases holds that it order for the revival statute to be valid the plaintiffs have to be free from decided a case like this by definition those were cases where the plaintiffs were free from fault and in at least two of them certainly in the holocaust case it seems to me the argument for extraordinary injustices is blatant this is a somewhat different case if you go back to the robinson case i don't see that as some case of extraordinary injustice and and the court didn't either they just said it was fair all things considered the legislature did is not such a great injustice because there is a discovery rule they didn't discover their injuries it's certainly theoretically possible that someone would immediately link this up and file a notice  claim but to say they are not free from fault your honor they had ninety days to file a notice a cli the statute of limitations with respect to battery park city was no different than the sympathy here for these folks that maybe they didn't know that they were supposed to file the notice of claim within ninety days is not some indication of of who's at fault here are those the amount of you can impose on these workers  mention of the basis for this statute is that they were provided incorrect work information that they lacked recognition of the causal connection between their illness  and nine eleven exposure and they were unaware of the statue of limitations there is no direct connection with fault in each of those things each of those three items  specifically addressed by the discovery rule of c p l are two fourteen six about the about the ninety day north requirement doesn't that complicated they have the opportunity each of the players had an opportunity within the three year window if they empowered to do whether they could meet the threshold of having a reasonable excuse is all they need to show is they have a reasonable excuse for missing and the simple fact is the plaintiffs didn't do that  are something you said a moment ago you said who all the other defendants had the same statute of limitations and in my mis understanding that the following is true everyone have the same statute of limitations but only you benefit from the ninety day a notice of claim requirement in this contract that's correct and that's the only thing that the legislature exempted the plaintiffs from not the statue of it's like a public corporation which gets the benefit of the ninety day limit i'm just having from understanding why you don't have to take the bad with the good on this it's because you have certain public aspects that you get the benefit of this ninety day notice of claim rule just like the city of new york does but you want to say it but actually we're much more like a private company and therefore the legislature can't tamper with or can undermine that ninety day limit where it could for the city of new york i'm not computing very well for me that's correct because there's a difference between a m municipal subdivision of a state in which the city of new york unquestionably is and a public authority which is a constant new york state constitutionally separate entity which the attorney general's office your you're arguing here for a kind of blunderbuss rule as may be the state arguing for a blunderbuss rule in the other direction but i thought the new york court of appeals was saying well each time you get a public corporation you not only decide whether that corporation in particular falls under this not not this rule falls under any rule that's applicable to public entities you look at this corporation and you look at what is the rule that is sought to be applied that applies generally to the public and you put the two things together and figure out whether this public corporation is subject to this rule that applies to public entities and that seems like a whole different thing than than you are saying and maybe different than what there is a but that particular case inquiry was performed by the district court in the simple fact is better report when you look at this was performing the function of a private commercial lend and what is section one hundred eighty one of the public authorities was say the authority has a public purpose and shall be reported as performing a governmental function you know that's a tax statute but that's pretty clear and serves to the benefit benefit of the people of state of new york the county of new york has a public purpose pretty obvious isn't it if you know your honor it's not be that is true for tax purposes the same language  say this though it doesn't say but for the only for the purpose of taxation of the bonds are we saying this it says this authority is is described by us in this way that is correct and that the same language is contained when you look at the court of appeals decision it's contained in the john grace case regarding the state university construction phone it's contained in the patterson case it's contained in the border low case it's contained in  case with respect to the transportation authorities that is the blanket language it is used in in the face of a language with a quarter of a peals his addresses they said the authorities are separate and distinct and autonomous  in for that and for those reasons and for the reasons in our brief we believe the district court's order should be from that you thank you you have two minutes through b thank you i'd like to start briefly by going to this particular test it was a mistake of the district court to assume that any particular arised inquiry was appropriate at all for the particular question which is is this a public entity a creature of the state viz a viz the state the particularized inquiry test applies in a completely different context for a completely different reason and that is to determine whether an entity that is in some ways distinct from the state easy outside parties should be treated as though it is the state viz a viz outside parties no court has ever in new york suggested that there is a particular ised in creature determine whether a public corporation public authority district authority or otherwise is a creature of the state always it's always pretty impressive when one can say that no court in new york has ever said something because usually you can find some court in new york that said just about anything but if we limit our inquiry to the new york court of appeals for a moment is there i mean there is there's such a dearth of authority on this particular question you've got black river which mr finery says isn't really a case of public benefit corporation at all and you've got paterson which you say is a footnote dictum and spends a little hard to say that the new york court of appeals has said something either way about whether there is a particular you know for most purposes that come up in the law when we ask the question is a public benefit corporation to be treated as a subdivision of the state or as something private we do a particular ised inquiry you're saying and it may be right that for this purpose we don't have to do that is there any new york  appeals case that you can cite other of them the two that each of you for your different reasons thinks is meaningless that says what you're now telling us to say black liver regulation district itself note footnote six of our brief in the malone case it was held to be distinct from the state of new york for purposes of suits against it however in black river regulating district the court said political power conferred by the legislature confers no vested right as against the government itself it is on the theory that the power conferred by the legislature is akin to that of a public trust to be exercised not for the benefit or at the will of the trustee but for the common good how long it shall last or how it shall be modified or altered belongs exclusively to the people to determine that is going to be true for one hundred percent of public authorities it is certainly true for this public authority it has no private owners it has no private managers its functions powers in existence are purely a matter of newark statutory law and it would seriously undermine the value of or would corporations to say that the legislature is hands are tied by a constitutional right vested in the corporation  itself that exists only to serve the public ends and to say that legislature cannot adapt the statutes in light of the public and at a later point in time and one final point it's recognizes that they are clearing and renovation of blighted areas and promotion of affordable housing are public purposes of the state of new york and b b c s ownership