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State of New York

Court of Appeals

OPINION

This opinion is uncorrected and subject to revision 

before publication in the New York Reports.

No. 11 

Kathleen Henry,

 Respondent,

 v.

New Jersey Transit Corporation et 

al.,

 Appellants,

et al.,

 Defendant.

Lawrence McGivney, for appellants.

Brian J. Isaac, for respondent.

Valbona Fetahu, New York Trial Lawyers' Association, amici curiae.

SINGAS, J.:

The question before us is whether we have power to hear this appeal under NY 

Constitution article VI, § 3 and CPLR 5601 (b) (1). To answer this threshold issue, we 

must consider the jurisdictional nature of interstate sovereign immunity to ascertain 
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whether defendants’ sovereign immunity defense is exempt from our general preservation 

rules. We conclude that a state must preserve its interstate sovereign immunity defense by 

raising it before the trial court, and no exception to the general preservation rule applies. 

Because defendants asserted their sovereign immunity defense for the first time on appeal 

after the United States Supreme Court decided Franchise Tax Bd. of Cal. v Hyatt (587 US 

—, 139 S Ct 1485 [2019] [hereinafter Hyatt III]), the argument is unpreserved in this case 

and there is no directly involved constitutional question supporting this appeal as of right. 

The appeal should therefore be dismissed.

I.

In 2014, plaintiff Kathleen Henry sustained injuries while riding on a bus owned by 

defendant New Jersey Transit Corporation and driven by defendant Renaud Pierrelouis 

(collectively, NJT) when it collided with a vehicle driven by defendant Chen Nakar1in the 

Lincoln Tunnel. Plaintiff commenced this action in June 2015, seeking to recover for the 

injuries she sustained in the accident. Following trial, the jury found in plaintiff’s favor 

and awarded her damages. NJT moved pursuant to CPLR 4404 (a) to set aside the verdict 

and for a new trial on damages, or to reduce the damages awarded by the jury. Supreme 

Court denied NJT’s motion (see 2019 NY Slip Op 31903[U] [Sup Ct, NY County 2019]).

On appeal, relying on the U.S. Supreme Court’s decision in Hyatt III—which was 

decided on May 13, 2019, after NJT’s posttrial motion was briefed but before it was 

1 Nakar was awarded summary judgment and the action was dismissed as against him 

before trial (see Sup Ct, NY County, June 6, 2018, Silvera, J., index No. 156496/2015). 

No appeal was taken from that order.
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decided—NJT argued for the first time in this litigation that the action should be dismissed 

under the doctrine of interstate sovereign immunity. NJT asserted that under Hyatt III, 

which overruled prior controlling precedent on the issue (see Nevada v Hall, 440 US 410 

[1979]), the instant action should be dismissed because New Jersey Transit Corporation, 

assertedly an arm of the State of New Jersey, and Pierrelouis, an employee who was acting 

within the scope of employment at the time of the accident, did not consent to suit in New 

York’s courts. NJT alternatively asserted that the trial court should have ordered a new 

trial on damages or reduced the damages award. 

The Appellate Division affirmed Supreme Court’s order denying NJT’s posttrial 

motions and rejected its new sovereign immunity argument (see 195 AD3d 444 [1st Dept 

2021]). The Court held that NJT waived its sovereign immunity defense through its 

litigation conduct, reasoning that NJT “did not place plaintiff or the court on notice of the 

defense by asserting it in its responsive pleadings, during pretrial litigation, at trial or in its 

posttrial motion. Indeed, it raised the issue for the first time on appeal” (id. at 445, citing 

Belfand v Petosa, 196 AD3d 60 [1st Dept 2021]). The Court further noted that, “[a]s the 

defense pre-dates [Hyatt III], and thus was available at the time [NJT] served its answer, 

‘[its] litigation conduct induced substantial reliance on that conduct by plaintiff and our 

courts, and is inescapably a clear declaration to have our courts entertain this action’ ” (id., 

quoting Belfand, 196 AD3d at 73). 

In July 2021, Supreme Court entered judgment in plaintiff’s favor against NJT. NJT 

subsequently filed this appeal as of right from the final judgment seeking to bring up for 

review the prior nonfinal Appellate Division order which, according to NJT, directly 
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involved a substantial constitutional question and necessarily affected the final judgment 

(see CPLR 5601 [b] [1]; [d]).

II.

This Court’s power to hear an appeal is limited by New York’s Constitution and, in 

civil cases, the CPLR. NJT asserts that its appeal lies pursuant to CPLR 5601 (b) (1), 

which permits an appeal as of right “from an order of the appellate division which finally 

determines an action where there is directly involved the construction of the constitution of 

the state or of the United States” (emphasis added; see NY Const, art VI, § 3 [b] [1]). For 

a constitutional question to be directly involved it must, among other things, be preserved 

as a question of law (see Matter of Schulz v State of New York, 81 NY2d 336, 344 [1993];

Matter of Shannon B., 70 NY2d 458, 462 [1987]; see also Madireddy v Madireddy, 14 

NY3d 765, 765 [2010]). Thus, “the constitutional question on the basis of which the appeal 

as of right is taken must have been properly raised in the courts below. Otherwise, . . . the 

appeal must be dismissed” (Arthur Karger, Powers of the New York Court of Appeals § 

7:4 [3d ed rev, Aug. 2022 update]).2 This is because NY Constitution article VI, § 3 (a)

2 The dissent, without basis, constructs a false narrative in suggesting that a litigant’s failure 

to preserve an issue “transmutes it from a question of law to not a question of law” 

(dissenting op at 10). It is well settled that an unpreserved issue does not raise a “question 

of law” as we have defined that term under our constitutional and statutory system (see 

Karger, Powers of the New York Court of Appeals §§ 6:5, 7:4).
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limits our “jurisdiction . . . to the review of questions of law,” except in cases not relevant 

here (see also CPLR 5501 [b]).3

In general, arguments, including constitutional challenges, are preserved only if 

presented at the trial court level (see Matter of McGovern v Mount Pleasant Cent. Sch. 

Dist., 25 NY3d 1051, 1053 [2015]; Matter of Barbara C., 64 NY2d 866, 868 [1985]). To 

demonstrate that a question of law is preserved for this Court’s review, a party must show 

that it “raise[d] the specific argument in Supreme Court and ask[ed] the court to conduct 

that analysis in the first instance” (U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 33 NY3d 84, 

89 [2019] [internal quotation marks and alterations omitted]). Certain circumstances exist 

in which the general preservation requirement does not apply. As relevant here, “[a] 

judgment or order issued without subject matter jurisdiction is void, and that defect may 

be raised at any time and may not be waived” (Editorial Photocolor Archives v Granger 

Collection, 61 NY2d 517, 523 [1984]) because it goes to the “competence” of the court 

(Lacks v Lacks, 41 NY2d 71, 75 [1976]; see Matter of Fry v Village of Tarrytown, 89 NY2d 

714, 718 [1997]; Karger, Powers of the New York Court of Appeals § 17:5 [“a claim of 

lack of subject matter jurisdiction . . . may be raised at any time because a jurisdictional 

defect may not be waived”]).

In this case, NJT failed to raise its sovereign immunity argument in Supreme Court 

and, thus, that issue is unpreserved. However, NJT argues that a sovereign immunity

3 These settled maxims belie the dissent’s mistaken view that the preservation requirement 

is a “[c]laim-processing rule[ ]” or “docket-management tool” (dissenting op at 5, 8).
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defense can be raised for the first time on appeal because such a defense, if established, 

would deprive New York courts of subject matter jurisdiction over this personal injury 

action. Thus, the threshold question for this Court is whether we may entertain this appeal 

filed by NJT as of right pursuant to CPLR 5601 (b) (1). This requires us to determine if 

NJT’s sovereign immunity argument implicates the subject matter jurisdiction of our state 

courts, thereby falling within a narrow exception to the preservation rule. In these unusual 

circumstances, we must address that substantive issue to the extent necessary to determine 

the procedural question of whether NJT is entitled to an appeal as of right.

III.

Sovereign immunity encompasses three distinct concepts: the immunity that states 

enjoy from suits in federal courts, the immunity they enjoy from suits in other states’ courts 

(or “interstate sovereign immunity”), and the immunity they enjoy in their own courts. 

Only the second is implicated here. 

Sovereign immunity derives from the common-law premise that “no suit or action 

can be brought against the king, even in civil matters, because no court can have 

jurisdiction over him” (1 William Blackstone, Commentaries on the Laws of England at 

235 [1765]; see Hyatt III, 587 US at —, 139 S Ct at 1493; see also Glassman v Glassman, 

309 NY 436, 440 [1956]). Because “all jurisdiction implies superiority of power,” no 

authority could hear a case “unless that court had a power to command the execution of it; 

but who . . . shall command the king?” (1 Blackstone at 235). Though the king could never 

be haled into court through “compulsion” the king could, upon a “just demand,” consent 

to private suit “as a matter of grace” (id. at 236). Sovereign immunity also emanates from 
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the conceit of “the perfect equality and absolute independence of sovereigns under . . . 

international law” (Hyatt III, 587 US at —, 139 S Ct at 1493 [internal quotation marks 

omitted]). 

“After independence, the States considered themselves fully sovereign nations . . . 

with ‘full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and 

to do all other Acts and Things which Independent States may of right do’ ” (id., 587 US 

at —, 139 S Ct at 1493, quoting Declaration of Independence ¶ 4, 1 US Stat 1, 3 [1776]). 

Consistent with pre-independence English common law and prevailing international law, 

the states accordingly considered themselves immune from suit (see Alden v Maine, 527 

US 706, 713 [1999]). 

At the time of the Constitutional Convention, the founders “took as given that States 

could not be haled involuntarily before each other’s courts,” seeing as “[i]t is inherent in 

the nature of sovereignty not to be amenable to the suit of an individual without its consent” 

(Hamilton, Federalist No. 81). Thus, the founders understood that a court could not assert 

jurisdiction over a state unless the state “condescended to be a party” (Debates of the 

Virginia Convention [June 20, 1788], at 1412, 1414). Nonetheless, the Constitution’s text 

was silent as to whether, as a general matter, states acceding to the union would maintain 

or give up the sovereign immunity they previously enjoyed as a confederation of states. 

The only mention of suits between states and individuals was in article III, § 2, clause 1, 

which governs the extent of a federal court’s jurisdiction.

Centuries later, in Nevada v Hall, the Supreme Court held that the Constitution did 

not grant states automatic immunity from suit in the courts of another state because the 
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Constitution is silent on that issue (see generally 440 US 410). The Court instead treated 

the issue as keeping with international-law notions of immunity: the decision for one state 

to extend immunity to another state in its own courts was a matter of comity for the forum 

state to decide (id. at 421, 425). Whether to extend immunity, though, was constrained by 

the Constitution’s Full Faith and Credit Clause (see id. at 421-424; see also US Const, art 

IV, § 1, cl 1), requiring each state to grant other states the same degree of sovereign 

immunity the other state would afford itself in its own courts, unless doing so would violate 

the forum state’s public policy (see Hall, 440 US at 422). 

In 2019, in Hyatt III, the Supreme Court overruled Hall’s core holding that the 

Constitution does not guarantee interstate sovereign immunity. It determined that the 

Constitution 

“altered the relationships between the States, so that they no 

longer relate to each other solely as foreign sovereigns. Each 

State’s equal dignity and sovereignty under the Constitution 

implies certain constitutional limitations on the sovereignty of 

all of its sister States. One such limitation is the inability of 

one State to hale another into its courts without the latter’s 

consent” (Hyatt III, 587 US at —, 139 S Ct at 1497 [internal 

quotation marks, citation, and alteration omitted]).

Hall’s conception of immunity based on principles of comity did not, according to the 

Court, reflect the altered relationships among the states under the framework of the 

Constitution (see id., 587 US at —, 139 S Ct at 1497-1498) and the pre-ratification 

recognition that “States were immune under both the common law and the law of nations” 

(id., 587 US at —, 139 S Ct at 1494). The Court thus concluded that “interstate sovereign 

immunity is . . . integral to the structure of the Constitution” and “implied as an essential 
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component of federalism” (id., 587 US at —, 139 S Ct at 1498 [internal quotation marks 

omitted]). This holding brought the doctrine of interstate sovereign immunity in line with 

other state sovereign immunity concepts, clarifying that all state sovereign immunity 

derives from the structure of the Constitution which confirmed and retained pre-ratification 

notions of state sovereign immunity “ ‘except as altered by the plan of the Convention or 

certain constitutional Amendments’ ” (see id., 587 US at —, 139 S Ct at 1494-1495, 

quoting Alden, 527 US at 713). Thus, the Court abandoned Hall’s full-faith-and-credit 

framework in favor of granting states a broad right to assert their immunity in any 

proceeding brought against them in another state’s courts. Following Hyatt III, one state 

may not refuse to respect another state’s properly asserted sovereign immunity defense (see 

id., 587 US at —, 139 S Ct at 1492, 1498).

IV.

It is undisputed that NJT raised its sovereign immunity argument for the first time 

before the Appellate Division. NJT’s contention that its failure to preserve the claim should 

be excused because it could not have known that Hyatt III would be decided merits little 

discussion. Hyatt III did not create the interstate sovereign immunity doctrine, and NJT 

could have raised a general sovereign immunity argument at any point before the trial court 

(see Belfand, 196 AD3d at 72-73). Further, even before Hyatt III was decided, the Supreme 

Court made clear in April 2016 that it was “equally divided” on the issue eventually 

resolved in Hyatt III (Franchise Tax Bd. of Cal. v Hyatt, 578 US 171, 173 [2016] [Hyatt 

II]). In any event, Hyatt III was decided before Supreme Court resolved NJT’s posttrial 

motions, but NJT took no action before that court asking for dismissal on sovereign 
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immunity grounds. In short, NJT could have asserted its sovereign immunity defense at 

Supreme Court, and Hyatt III’s timing does not excuse NJT from its failure to do so.

NJT’s thornier argument is that its sovereign immunity defense may be raised at any 

time because that doctrine goes to the subject matter jurisdiction of the New York courts 

to entertain this action. As explained above, we have held that a claim that the courts below 

lack subject matter jurisdiction need not be preserved (see Cappiello v Cappiello, 66 NY2d 

107, 108 [1985]; Editorial Photocolor Archives, 61 NY2d at 523). However, the interstate 

sovereign immunity that NJT seeks to assert here presents no such exception.

Subject matter jurisdiction is a “power to adjudge concerning the general question 

involved” in litigation, and “is not dependent upon the state of facts which may appear in 

a particular case” (Hunt v Hunt, 72 NY 217, 229 [1878]). “ ‘The question of subject matter 

jurisdiction is a question of judicial power: whether the court has the power, conferred by 

the Constitution or statute, to entertain the case before it’ ” (Matter of Ballard v HSBC 

Bank USA, 6 NY3d 658, 663 [2006], quoting Matter of Fry, 89 NY2d at 718). It “cannot 

be dispensed with by litigants” because litigants cannot expand a court’s power by consent 

or agreement (Shea v Export S.S. Corp., 253 NY 17, 21 [1930]; see Union Pacific R. Co. v 

Locomotive Engineers, 558 US 67, 81 [2009] [“Subject-matter jurisdiction properly 

comprehended . . . refers to a tribunal’s power to hear a case” and “can never be forfeited 

or waived” (internal quotation marks omitted)]). 

Personal jurisdiction is a different concept that refers to a court’s power to exert 

legal authority over specific parties (see Reed v Chilson, 142 NY 152, 155-156 [1894]; see 

also Keane v Kamin, 94 NY2d 263, 265 [1999]). An objection to personal jurisdiction may 
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be forfeited by a party’s failure to timely assert it or expressly waived, such as when a party 

consents to a tribunal’s authority to adjudicate the merits of a dispute (see CPLR 3211 [e]; 

Addesso v Shemtob, 70 NY2d 689, 690 [1987]). When a personal jurisdiction defense is 

properly asserted, a court must determine whether it may exercise such jurisdiction under 

our long-arm statute and the New York and federal constitutions. A state court may 

constitutionally exercise personal jurisdiction over a party when that party is generally 

“amenable to suit” because it is “essentially at home” in the state (Daimler AG v Bauman, 

571 US 117, 125, 127 [2014] [internal quotation marks omitted]) or “should reasonably 

anticipate being haled into court” because of its contacts with the state (State of New York 

v Vayu, Inc. 39 NY3d —, 2023 NY Slip Op 00801, *4 [2023] [internal quotation marks 

omitted]). 

Hyatt III accepted that interstate sovereign immunity is waivable based on litigation 

conduct (see Hyatt III, 587 US at —, 139 S Ct at 1491 n 1; cf. Aboujdid v Singapore 

Airlines, 67 NY2d 450, 454, 459 [1986]).4 Arguments or defenses that are waivable are 

generally subject to our preservation rule. The Supreme Court’s determination that 

interstate sovereign immunity is waivable fatally undermines NJT’s argument that 

interstate sovereign immunity is rooted in subject matter jurisdiction because subject matter 

jurisdiction, as a rule, “cannot be dispensed with by litigants” (Shea, 253 NY at 21) and 

4 Drifting far afield from the issues needed to resolve this matter—even under its view of 

this case—the dissent proposes additional methods by which NJT might have waived its 

sovereign immunity defense, conflating principles of forfeiture, waiver, and consent to 

personal jurisdiction (see e.g. dissenting op at 24). We limit our discussion to waiver by 

litigation conduct as that principle informs the threshold preservation issue.
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“can never be forfeited or waived” (Union Pacific R. Co., 558 US at 81 [internal quotation 

marks omitted]). Interstate sovereign immunity’s waivability vitiates any legal 

justification for applying a broad exception to the general preservation requirement to such 

sovereign immunity claims.5 

The history and nature of interstate sovereign immunity guide us to the conclusion 

that the doctrine more closely aligns with jurisdiction over a party, rather than over all 

subject matter concerning that party. In particular, interstate sovereign immunity is rooted 

and analyzed in terms of concepts such as a court’s power over a party, a state’s amenability 

to suit, its consent to be sued, and haling a party into court—all of which align closely with 

treatment of personal jurisdiction issues, not subject matter jurisdiction ones (see Hyatt III, 

587 US at —, 139 S Ct at 1493, citing James E. Pfander, Rethinking the Supreme Court’s 

Original Jurisdiction in State-Party Cases, 82 Cal L Rev 555, 581-588 [1994] and Caleb 

Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv L Rev 1559, 

1574-1579 [2002]). As such, interstate sovereign immunity defenses do not fall within the 

subject-matter-jurisdiction exception to the general preservation requirement discussed 

above.

The cases that NJT cites concerning the State of New York’s ability to raise 

sovereign immunity for the first time on appeal in Court of Claims matters do not require 

5 Similarly, while a court typically must raise a lack of subject matter jurisdiction on its 

own motion (see Insurance Corp. of Ireland v Compagnie des Bauxites de Guinee, 456 US 

694, 702 [1982]; Matter of Fry, 89 NY2d at 718), a federal court need not raise the 

sovereign immunity “defect on its own. Unless the State raises the matter, a court can 

ignore it” (Wisconsin Dept. of Corrections v Schacht, 524 US 381, 389 [1998]).
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a different result. Unlike our state Supreme Court, the Court of Claims has limited 

jurisdiction as defined in the Court of Claims Act, and New York has statutorily waived 

sovereign immunity only for causes of action falling with the Act’s parameters (see Court 

of Claims Act § 8; Ferreira v City of Binghamton, 38 NY3d 298, 307 [2022]). It is thus 

the scope of the Court of Claims Act, rather than sovereign immunity, that limits the Court 

of Claims’ subject matter jurisdiction—the two concepts just happen to be coextensive in 

that context because of the statutory scheme. Here there is no similar statutory limitation 

on the ability of New York courts to hear disputes involving another state.

V.

Given that NJT’s sovereign immunity argument is unpreserved and does not qualify 

for any exception to the preservation requirement, an appeal as of right does not lie under 

CPLR 5601 (b) (1). As our analysis demonstrates, the threshold question is whether NJT’s 

sovereign immunity argument qualifies for an exception to the preservation requirement.6 

Nonetheless, the preservation issue itself, like the merits of NJT’s sovereign immunity 

claim,7is not directly involved because the Appellate Division did not address the issue 

6 Of course, in addition to appealing as of right under CPLR 5601 (b) (1), NJT could have 

moved for leave to appeal from the Appellate Division order, arguing that the preservation 

issue merited this Court’s review (see CPLR 5602 [a]; see e.g. Matter of Schulz, 81 NY2d 

at 344; Matter of Shannon B., 70 NY2d at 462). Indeed, following dismissal of this appeal, 

NJT could still move for leave to appeal (see CPLR 5514 [a]), though we have now 

resolved the issue that would be reviewable if we granted that motion. 

7 The Appellate Division, which has interest of justice jurisdiction, had the power to review 

whether, by its conduct, NJT waived its sovereign immunity argument without first 

addressing NJT’s failure to properly preserve that defense in Supreme Court (see U.S. Bank 

N.A., 33 NY3d at 89; Hecker v State of New York, 20 NY3d 1087, 1087 [2013]). While 

lack of preservation and waiver by litigation conduct each may hinder review of a litigant’s 
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and, thus, it was not “decisive of the Appellate Division’s determination” (Karger, Powers 

of the New York Court of Appeals § 7:8). Because no constitutional question is preserved 

and, thus, directly involved in this appeal as of right, the Court must dismiss it (see NY 

Const, art VI, § 3 [b] [1]; CPLR 5601 [b] [1]; see also Matter of Schulz, 81 NY2d at 344;

Matter of Shannon B., 70 NY2d at 462). An unpreserved issue, not subject to any 

preservation exception, may not be the predicate for an appeal as of right under CPLR 5601 

(b) (1).8

Accordingly, the appeal should be dismissed, without costs, upon the ground that 

no substantial constitutional question is directly involved.

argument on the merits, they are different legal doctrines governed by distinct rules and 

bodies of precedent.

8 These constraints are critical to maintaining this Court’s proper role in the state 

constitutional design. Whether an appeal as of right lies to this Court in a certain case is a 

matter of state, not federal, law. In dismissing this appeal, we simply apply that wellsettled and frequently-invoked law to the facts presented. 
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WILSON, J. (dissenting):

The majority begins by advising that “[t]he question before us is whether we have 

the power to hear this appeal under NY Constitution article VI, § 3” (majority op at 1). 

Yet, after a lengthy exegesis of significant constitutional issues dating back to Blackstone 

and our nation’s founding, the majority concludes that “no substantial constitutional 

question is directly involved” in this case (majority op at 14). The majority’s explanation 

for the incongruity is that because the defendant, New Jersey Transit (NJT), did not 

preserve its argument that it was entitled to sovereign immunity under Franchise Tax Bd. 

of Cal. v Hyatt (139 S Ct 1485 [2019] [hereinafter Hyatt III]), our preservation doctrine—
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which it also claims is “not directly involved” in the case (see majority op at 13)—trumps 

NJT’s sovereign immunity claim, meaning no constitutional issue is present. The majority 

does not say that NJT’s failure to preserve a sovereign immunity argument itself constituted 

a waiver of sovereign immunity (see majority op at 13-14 n 7). Rather, it states that we do 

not need to consider the argument at all—NJT may, according to the majority, be unable 

to enforce a perfectly good sovereign immunity defense that it did not waive according to 

the waiver rules set by the Federal Constitution. That position is inconsistent not only with 

federal jurisprudence on jurisdiction, but also our own case law on preservation. 

Turning to something more straightforward, Kathleen Henry was injured in New 

York when the NJT bus on which she was riding collided with a car. Buses, trains, and 

ferries operated by NJT transport more than a hundred thousand passengers into and out of 

New York City each day. NJT says that the Federal Constitution forbids the courts of New 

York from hearing any claim caused by its buses or trains when operating in New York. 

According to NJT, if one of its buses hits a New York pedestrian standing on a New York 

City sidewalk, the Federal Constitution bars the injured pedestrian from suing NJT in the 

courts of New York. Even if that pedestrian had never set foot in New Jersey, the only 

place in which suit could be brought would be in New Jersey, and only to the degree New 

Jersey decided, in its sole discretion, to allow such suits. Ms. Henry says she can sue NJT 

in the state in which she was injured, New York.

The majority does not opine on that dispute. The majority does not even opine on 

the Appellate Division’s holding that NJT has waived its sovereign immunity by raising it 

too late. Instead, the majority says that we lack jurisdiction to determine whether we lack 
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jurisdiction over these parties. Therefore, we have jurisdiction to dismiss this case for lack 

of jurisdiction, thereby leaving in place the Appellate Division’s decision, namely, that 

New York courts had jurisdiction over the case all along, and Ms. Henry can collect 

Supreme Court’s $979,579.50 award in her favor (less the amounts covered by her own 

health insurance).

I propose a simpler resolution, which is the same as the Appellate Division arrived 

at: we have jurisdiction because New Jersey and NJT waived any right NJT had to claim 

sovereign immunity. NJT asserted its sovereign immunity defense more than five years 

after Ms. Henry sued and more than one year after the United States Supreme Court issued 

the opinion on which it now relies. By asserting sovereign immunity now, NJT would 

leave Ms. Henry without any forum in which to bring her suit. That type of strategic 

maneuvering belies the claim that NJT has been haled into a foreign court without its 

consent. 

But even if NJT did not consent to our jurisdiction via its litigation conduct, it more 

fundamentally consented by operating in New York with the knowledge that persons in 

New York would inevitably be harmed by its actions. Like so many of the New Jerseyans 

and New Yorkers it carries, NJT has a foot in both New York and New Jersey. It operates 

a billion-dollar transportation business that, like a range of public and private carriers, 

ferries vast numbers of passengers into and out of New York each day. Those other carriers 

can be sued in New York courts for violating New York law. Our courts are vital not only 

for keeping New Yorkers—and New Jerseyans like Ms. Henry, for that matter—safe from 

NJT’s operations within our borders, but for creating the conditions that make operating in 
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New York so lucrative for NJT in the first place. Indeed, New Jersey itself recognizes the 

importance of subjecting NJT to judicial process and has already done so for claims arising

in New Jersey. NJT provides no compelling reason why Newark Penn Station should be 

governed by a different set of sovereign immunity rules than New York Penn Station. New 

Jersey’s respect for New York’s equality and sovereignty requires it to consent to the same 

control it exercises over its own territory.

Thankfully, the majority’s decision yields the correct outcome, albeit for the wrong 

reason: instead of affirming the Appellate Division’s holding that NJT waived whatever 

sovereign immunity it might have claimed, the majority dismisses this appeal, leaving the 

Appellate Division’s waiver holding in place.

1

 The jury’s verdict in favor of Ms. Henry 

will stand and NJT will not be subjected to the power of an illegitimate tribunal. But the 

majority’s decision will not resolve problems going forward. There have been many of 

these cases already and more are rolling down the pike (e.g. Colt v New Jersey Tr. Corp., 

206 AD3d 126, 127 [1st Dept 2022] [“The constitutional dilemma concerning the doctrine 

of sovereign immunity continues unabated”]; Taylor v New Jersey Tr. Corp., 199 AD3d 

540 [1st Dept 2021]; Belfand v Petosa, 196 AD3d 60 [1st Dept 2021]; Fetahu v New Jersey 

Tr. Corp., 197 AD3d 1065 [1st Dept 2021]). Lower courts will need our guidance with a 

relatively new and complicated doctrine. By misapplying our preservation jurisprudence 

1 Neither the majority nor my dissent addresses whether NJT is entitled to sovereign 

immunity at all (cf. Hess v Port Auth. Trans-Hudson Corp., 513 US 30 [1994]). The 

majority concludes that the issue is not preserved and I conclude that any immunity would 

have been waived, rendering it unnecessary to consider that question.
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and failing to address this recurring issue, the majority leaves NJT, future litigants, 

regulators, and lower courts in the dark. 

I.

The majority says that we need not determine whether NJT has asserted a valid 

jurisdictional objection because the defense was unpreserved, meaning that this case does 

not “directly involve[] the construction of the constitution of the state or of the United 

States” (NY Const, art VI, § 3 [b] [1]; see majority op at 4 [emphasis omitted]). Here is 

the problem: NJT says the New York courts lacked the power to hear the case because of 

New Jersey’s sovereign immunity. If that is true, we are employing our preservation 

doctrine to permit the New York courts to assert jurisdiction where they have none. If that 

is false, whether because of waiver or some other reason, we should just say so. Instead, 

the majority assumes that—regardless of whether NJT has a valid and unwaived sovereign 

immunity claim—we may apply our docket-management tool to nullify a limit on our 

jurisdiction imposed by the Federal Constitution. It further transforms our preservation 

doctrine, which was designed to help us “cope” with our historically “voluminous” 

caseload (cf. Karger, § 2:1) into a tool for expanding our reach by allowing us to assert 

jurisdiction over cases we otherwise might not be able to hear. Because our preservation 

doctrine cannot confer jurisdiction over cases and parties when the Federal Constitution so 

forbids, I cannot join the majority. 

Our preservation doctrine, on which the majority opinion rests, cannot allow us to 

avoid our constitutional obligation to resolve this dispute. In prior cases, we have 
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dismissed appeals for lack of a preserved substantial constitutional question (see majority 

op at 14, citing Matter of Schulz v State of New York, 81 NY2d 336, 344 [1993]). Those 

cases have not involved challenges to our jurisdiction, nor arguments that a jurisdictional 

challenge has been waived. In New York, jurisdictional challenges are typically either 

immune from our preservation requirement (see majority op at 10) or, as with personal 

jurisdiction, subject to a waiver doctrine so strict that no unpreserved jurisdictional 

argument could possibly exist (see CPLR 3211 [e]; Addesso v Shemtob, 70 NY2d 689, 690 

[1987] [internal quotation marks omitted] [noting that a party waives personal jurisdiction 

by failing to timely assert it]). 

NJT’s challenge falls squarely into our well-established exception to the 

preservation requirement for jurisdictional challenges to our authority (see e.g. Matter of 

Kaplan (Blumenfeld), 8 NY2d 214, 220 [1960] [“this lack of a subpoena was not raised by 

appellant in the courts below but, being jurisdictional and conclusive, it may be acted on 

by us”]; see generally Arthur Karger, Powers of the New York Court of Appeals § 17:5 

[3d ed rev, Aug. 2022 update]). The majority’s claim that we have a “subject-matterjurisdiction exception” only (majority op at 12 [emphasis added]) ignores the underlying 

logic of our exception and rests on a false congruence of jurisdiction and waivability.

Moreover, Ms. Henry’s waiver argument also falls into a second preservation 

exception because NJT could not have made any factual or legal countersteps between the 

time when it asserted its sovereign immunity defense and the point at which it advanced 

the argument here (see generally Telaro v Telaro, 25 NY2d 433, 439 [1969]).
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A.

As the majority notes, “ ‘all jurisdiction implies superiority of power,’ [and] no 

authority c[an] hear a case ‘unless that court ha[s] a power to command the execution of 

it’ ” (majority op at 6, quoting 1 William Blackstone, Commentaries on the Laws of 

England at 235 [1765]). If the constitution denies a court jurisdiction over a class of cases 

or a party, the court lacks “constitutional power to adjudicate the case” (Reed Elsevier, Inc. 

v Muchnick, 559 US 154, 160-161 [2010], quoting Steel Co. v Citizens for Better 

Environment, 523 US 83, 89 [1998]). The Hyatt III Court stated that the Federal 

Constitution denies state courts jurisdiction over nonconsenting states: a “[s]tate’s assertion 

of compulsory judicial process over another [s]tate involves a direct conflict between 

sovereigns. The Constitution implicitly strips [s]tates of any power they once had to refuse 

each other sovereign immunity, just as it denies them the power to resolve border disputes 

by political means” (Hyatt III, 139 S Ct at 1498; see also id. at 1495). 

The fact that sovereign immunity can be waived does not make it any less 

jurisdictional when it has not been waived. In the Eleventh Amendment context, the fact 

that the immunity may be waived by litigation conduct does not “vitiate[] any legal 

justification” (majority op at 12) for requiring a sovereign to preserve its immunity defense 

(see Calderon v Ashmus, 523 US 740, 745 n 2 [1998] [“the Eleventh Amendment is 

jurisdictional in the sense that it is a limitation on the federal court’s judicial power, and 

therefore can be raised at any stage of the proceedings”]; Pennhurst State School & Hosp. 

v Halderman, 465 US 89, 99 [1984] [“The limitation deprives federal courts of any 
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jurisdiction to entertain such claims, and thus may be raised at any point in a proceeding” 

despite being waivable]; Wisconsin Dept. of Corrections v Schacht, 524 US 381, 395 

[1998] [Kennedy, J., concurring] [Eleventh Amendment sovereign immunity represents a 

“departure from the usual rules of waiver”]). Claim-processing rules like our preservation 

requirement cannot confer power on a tribunal where the Federal Constitution denies it. 

Federal personal jurisdiction jurisprudence further demonstrates that waivability 

does not make a jurisdictional limit any less binding on a court. The personal jurisdiction 

requirement “represents a restriction on judicial power” the same as subject-matter 

jurisdiction requirement (Insurance Corp. of Ireland v Compagnie des Bauxites de Guinee, 

456 US 694, 702 [1982]). Because “there is no unyielding jurisdictional hierarchy,” federal 

courts without subject-matter jurisdiction over a case may hear the case anyway to the 

extent necessary to resolve questions of personal jurisdiction (Ruhrgas AG v Marathon Oil 

Co., 526 US 574, 578 [1999]). The fact that a party may waive a personal jurisdiction 

challenge does not make it any less “fundamental” (id. at 584). Although “a jurisdictional 

defect [with respect to subject-matter jurisdiction] may not be waived” (Karger, § 17:5), a 

defect with respect to personal jurisdiction may be waived (see Insurance Corp. of Ireland, 

456 US 694, 703-704 [1982]). That difference, however, does not render the lack of 

personal jurisdiction nonjurisdictional.

Our jurisdictional exception to the preservation requirement is premised on the 

fundamental principle that we cannot hear a case over which we lack power and applies to 

all jurisdictional challenges to our authority (see Editorial Photocolor Archives v Granger 
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Collection, 61 NY2d 517, 523 [1984] [“A judgment or order issued without subject matter 

jurisdiction is void, and that defect may be raised at any time and may not be waived”]). 

A true jurisdictional defect in a judgment is “so fundamental to the power of adjudication 

of a court that [it] survive[s] even a final judgment or order” (Lacks v Lacks, 41 NY2d 71, 

74-75 [1976]). Because a jurisdictional defect would “undermine the constitutional or 

statutory basis to hear a case” and invalidate the judgment, we do not apply our preservation 

requirement to jurisdictional defects (see Matter of Ballard, 6 NY3d at 663; Ocean 

Accident & Guarantee Corp., Ltd. v Otis Elevator Co., 291 NY 254, 255 [1943] [“This 

court possesses only those powers which are conferred by the Constitution . . . . (s)uch 

powers . . . may not be enlarged by consent of the parties”]; People v Nicometi, 12 NY2d 

428, 431 [1963] [“Want of jurisdiction is a basic defect, not a trial error . . . [s]ince this 

defect would undoubtedly be grounds for the issuance of a writ of habeas corpus, it most 

assuredly can be remedied on appeal”]). As with subject-matter jurisdiction, “[t]he 

question of [sovereign immunity] is a question of judicial power: whether the court has 

the power, conferred by the Constitution or statute, to entertain the case before it” (see 

majority op at 10, quoting Matter of Ballard v HSBC Bank USA, 6 NY3d 658, 663 [2006]). 

As a matter of Federal Constitutional law, a judgment rendered by a court without 

jurisdiction over a party is invalid and not entitled to the respect of other courts (see V.L.,

577 US at 407; Bristol-Myers Squibb Co. v Superior Court of California, San Francisco 

County, 137 S Ct 1773, 1776 [2017]). 
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The fact that subject-matter jurisdiction cannot be waived and may be raised by a 

court sua sponte (see majority op at 10-12) is a consequence of the way in which subjectmatter jurisdiction limits our power: that is, it is the kind of limit on our authority that 

cannot be cured by the consent of the parties. When we articulated the jurisdictional 

exception to preservation in Editorial Photocolor Archives, we did not say that a judgment 

issued without subject-matter jurisdiction could be raised at any time because it was 

waivable—rather, we said that it could be raised at any time “and may not be waived” (61 

NY2d at 523 [emphasis added]). But other jurisdictional limits—like personal 

jurisdiction—can be overcome by the consent of the parties. Subject-matter jurisdiction’s 

lack of waivability is not the reason we do not apply our preservation requirement to issues 

of subject-matter jurisdiction. Rather, we do not apply preservation in that context because 

our preservation doctrine is a prudential tool that can serve the interests of judicial economy 

and finality but cannot enhance our jurisdiction.

The majority defends its decision with nested legal fictions. The first is that 

unpreserved questions of law are somehow no longer questions of law (see majority op at 

4 n 2). The New York Constitution vests our court with jurisdiction “limited to the review 

of questions of law” (art VI, § 3 [a]). Our case law does not explain how a litigant’s failure 

to raise a purely legal question at the right time transmutes it from a question of law to not 

a question of law. In moments of candor, we have admitted that our claim that unpreserved 

questions of law are not questions of law is rooted in prudential considerations, sometimes 

used to deny ourselves jurisdiction. Even in the criminal context, where the preservation-
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as-jurisdictional argument is on stronger—though not decisive—legal footing (see CPL 

470.05 [2]), we have acknowledged that “[t]he requirement that a claim must be timely 

raised in order to create a question of law is grounded in large part in the need to preserve 

limited judicial resources and avoid untoward delay in the resolution of criminal 

proceedings,” even as we have asserted that preservation is jurisdictional (People v 

Michael, 48 NY2d 1, 6 [1979]). But that legal fiction proves too much. If preservation 

were truly jurisdictional, we would not be able to create exceptions “when common sense 

and practical necessity dictate that we should” (Misicki v Caradonna, 12 NY3d 511, 525-

526 [2009] [Smith, J., dissenting]). Instead, when applying our requirement seems harsh, 

we have dispensed with it altogether, as when “certain principles of law are deemed so 

fundamental to our criminal justice system that a claimed violation of those principles 

creates a question of law despite the failure to timely raise that claim in the courts below” 

(Michael, 48 NY2d at 6). 

The majority does not, as in those other cases, simply ignore the fiction that 

unpreserved questions of law are not questions of law. Instead, it turns to a nineteenthcentury case in which we said: “[j]urisdiction of the subject-matter, is power to adjudge 

concerning the general question involved, and is not dependent upon the state of facts 

which may appear in a particular case, arising, or which is claimed to have arisen, under 

that general question” (Hunt v Hunt, 72 NY 217, 229 [1878]; see majority op at 10). 

Whereas the “unpreserved-questions-of-law-are-not-questions-of-law” fiction renders 

legal questions unreachable, the “subject-matter-jurisdiction-does-not-involve-facts” 
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fiction operates in reverse. Taken as a serious proposition, however, that second fiction 

fares no better than the first: the framing of a general question of subject-matter jurisdiction 

often depends on facts. Examples of such questions reviewable by us under the 

jurisdictional exception abound: “[w]hether the essential nature of the claim is to recover 

money, or whether the monetary relief is incidental to the primary claim,” an inquiry that 

“is dependent upon the facts and issues presented in a particular case” (see Matter of Gross 

v Perales, 72 NY2d 231, 236 [1988]); whether the accusatory instrument was valid (see 

People v Harper, 37 NY2d 96, 99 [1975]); whether the defendant was served with a 

subpoena (see Matter of Kaplan, 8 NY2d at 220); whether the appealing party filed its 

notice of appeal within the right number of days (see Cappiello v Cappiello, 66 NY2d 107, 

108 [1985]); whether the administrative agency’s decision was based on a law it could 

enforce (see Montella v Bratton, 93 NY2d 424, 432 [1999]); whether the trial court’s order 

was appealable (see People v McDonald, 68 NY2d 1, 14 [1986]); and whether the record 

in the case was “a mechanical recording” or instead was “taken by a court stenographer” 

(see People v Smith, 27 NY3d 643, 649 [2016]). Questions of subject-matter jurisdiction, 

then, often turn on the facts of a particular case.

Thankfully, our precedent explains that “jurisdictional” often has not truly meant 

“jurisdictional,” a proposition that cabins the precedential impact of the majority’s opinion. 

In Lacks v Lacks, we dismissed “a line of decisions dating back to the last century and 

continuing into the present” on the ground that we spoke with “less than perfect 

meticulousness” when we used the phrase “jurisdiction” (41 NY2d at 74). We explained 
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that “[a] statement that a court lacks ‘jurisdiction’ to decide a case may, in reality, mean 

that elements of a cause of action are absent,” and that “questions of mootness and standing 

of parties may be characterized as raising questions of subject matter jurisdiction,” but are 

nonetheless not the “kinds of judicial infirmities” that would constitute a “lack of true 

subject matter jurisdiction or competence” (id. at 74-75; see also Reed Elsevier, Inc., 559 

US at 161 [“such ‘drive-by jurisdictional rulings. . .’ too easily can miss the ‘critical 

difference(s)’ between true jurisdictional conditions and nonjurisdictional limitations on 

causes of action” (alteration in original)]). If preservation deprived our court of jurisdiction 

in the same way lack of personal jurisdiction or subject-matter jurisdiction did, a ruling on 

the basis of an unpreserved argument would constitute grounds for a motion to vacate the 

judgment (see Lacks, 41 NY2d at 76; Royal Zenith Corp. v Continental Ins. Co., 63 NY2d 

975, 977 [1984] [“A court is without power to render a judgment against a party as to whom 

there is no jurisdiction . . . and a judgment rendered without jurisdiction is subject to 

collateral attack”]). Unless the majority has announced a sweeping new procedural 

mechanism for collaterally attacking our own judgments, it follows our tradition of 

speaking with “less than perfect meticulousness” (see Lacks, 41 NY2d at 74). Indeed, the 

very phrase “subject-matter-jurisdiction exception” (majority op at 12) would be 

incoherent if we truly lacked subject-matter jurisdiction over unpreserved claims. 

B.

Ms. Henry’s waiver arguments fall into a second exception to our preservation 

requirement as well. Contentions which could not “have been obviated or cured by factual 
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showings or legal countersteps . . . . below may be raised on appeal for the first time” 

(Telaro v Telaro, 25 NY2d 433, 439 [1969]; accord Bingham v New York City Transit 

Authority, 99 NY2d 355, 359 [2003]). NJT could not, when it first asserted its defense in 

2020, have made any countermoves that would change the status of its waiver. It could 

not have traveled back to May 2019 and alerted Supreme Court that Hyatt III had changed 

the doctrinal landscape. Nor could it have gone further back and either not decided to do 

business in New York or repealed New Jersey’s waiver of sovereign immunity. Indeed, if 

anyone was denied countermoves, it was Ms. Henry, who was denied the ability to access 

relevant discovery concerning what, if any, concessions NJT made in order to be able to 

operate in New York.2

In this case, the majority’s preservation ruling did not prejudice Ms. Henry because 

the Appellate Division correctly ruled that NJT had waived any sovereign immunity it 

might have been able to claim. Had it gone the other way, however, the majority’s 

application of the preservation doctrine would have served to blindside Ms. Henry and 

deny her the ability to litigate this issue fully. Such a decision would defy common sense 

and the fair expectations of litigants.

2 Ms. Henry observes that, because NJT first raised sovereign immunity on appeal, she had 

no opportunity to discover whether any agreements between New York and New Jersey 

already exist by which New Jersey has contractually waived its sovereign immunity in 

connection with the operation of NJT in New York.
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II.

The scope of immunity asserted by NJT exceeds the scope of historical practice. In 

an effort to make an anachronistic “meaning move across time,” lawyers sometimes ignore 

the important context and nuance that has characterized the historical practice of suits 

against sovereigns (cf. Lauren Benton, Beyond Anachronism: Histories of International

Law and Global Legal Politics, 21 J of the Hist of Int’l L 7, 10 [2019] [internal quotation 

marks omitted]). The historical practice of private litigation against sovereign entities 

suggests that the rhetoric often used to justify an expansive reading of sovereign immunity 

is misleading at best.

The U.S. Supreme Court has identified two historical strands that are braided 

together to form our contemporary doctrine of sovereign immunity: “common law 

sovereign immunity” and “law-of-nations sovereign immunity” (Hyatt III, 139 S Ct at 

1493). Both doctrines, as practiced at the time that the Federal Constitution was ratified, 

permitted sovereign tribunals to vindicate the rights of private parties who had been harmed 

by a government. One important basis for jurisdiction has long been a sovereign’s implied 

consent to being sued, especially when a sovereign commits wrongs in another sovereign’s 

territory.

“Common law sovereign immunity” provided subjects with wide latitude to sue 

their own government officials and even the king himself. When William Blackstone 

wrote that “no suit or action can be brought against the king, even in civil matters, because 

no court can have jurisdiction over him,” he qualified his statement by noting that the king 
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could nonetheless be subject to process by his consent or “grace” (1 Blackstone, at 235-

236). Blackstone’s statement did not, however, mean that the king and his officials were 

generally insulated from liability. To the contrary, the immunity of the king did not extend 

to his officers (see Louis L. Jaffe, Suits Against Governments and Officers: Sovereign 

Immunity, 77 Harv L Rev 1, 3 [1963]; James E. Pfander, Sovereign Immunity and the Right 

to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the 

Government, 91 Nw U L Rev 899, 920-921 [1997]). Moreover, sovereign immunity did 

not shield the king himself from the law either. By Blackstone’s time “the requirement of 

consent to suit had gradually disappeared,” as either the requirement was replaced by a 

“fictional consent” or else “the authority to pass upon the petition was shifted from the 

Crown to the courts of justice” (Pfander, at 911-912 [1997]). 

At the time of this nation’s founding, “law-of-nations sovereign immunity” 

recognized significant limits on a sovereign’s ability to escape another sovereign’s 

tribunals for actions taken in that sovereign’s territory. As the fêted Emer de Vattel, “the 

founding era’s foremost expert on the law of nations” opined, “ ‘[i]t does not ... belong to 

any foreign power to take cognisance of the administration of [another] sovereign, to set 

himself up for a judge of his conduct, and to oblige him to alter it . . . .’ The sovereign is 

‘exemp[t] ... from all [foreign] jurisdiction’ ” (Hyatt III, 139 S Ct at 1493-1494, citing 2 

Emer de Vattel, The Law of Nations § 55, at 155 [J. Chitty ed. 1883] and 4 id. § 108, at 

486; see also John Fabian Witt, Lincoln’s Code: The Laws of War in American History 16 

[2012] [describing Vattel as “the most widely ready authority in Europe and its colonies 
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on . . . the law of nations”]). Though it might sound sweeping, Vattel’s immunity mostly 

referred to efforts by one nation to take charge of the internal governance of another: when 

he explained that a foreign power could not take cognizance of the administration of 

another sovereign, his quintessential examples involved a foreign sovereign who 

supplanted a domestic sovereign for taxing his subjects too highly, inflicting unjust 

punishments on his subjects, or contravening Christian morals—“things, for which [the 

domestic sovereign] was not at all accountable to [the foreign sovereign]” (2 id. § 55, at 

155-156; accord 1 James Kent, Commentaries on American Law 20-21 [Comstock ed. 

1867]). By contrast, Vattel acknowledged a domestic sovereign’s “right to preserve herself 

from all injury” because “when we cannot use constraint in order to cause our rights to be 

respected, their effects are very uncertain” (2 Vattel § 49, at 154; accord 1 Kent at 22 

[“Every nation has an undoubted right to provide for its own safety, and to take due 

precaution against distant as well as impending danger”]). 

Vattel further distinguished between types of conduct in his account of the immunity 

afforded to the literal body of a foreign sovereign itself. Thus, if a prince were in a foreign 

country to negotiate or “treat about some public affair” he would be “entitled in a more 

eminent degree to enjoy all the rights of ambassadors,” whereas “[i]f he c[a]me as a 

traveler, his dignity alone, and the regard due [his] nation” would “exempt[] him from all 

jurisdiction,” though the host country could withdraw that protection if it so informed him 

(4 Vattel § 108, at 486). However, if he “act[ed] as an enemy,” the prince would be entitled 

to no regard at all (4 id. § 108, at 486). Moreover, the foreign prince could not exercise his 
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rights in such a manner as to “affect the sovereignty of the country in which he [was] a 

sojourner” (id. at 487; see also 2 id. § 92, at 169 [“the least encroachment on the territory 

of another is an act of injustice”]).

Vattel’s conception of sovereign immunity left sovereigns with wide latitude to 

punish foreigners who committed transgressions within territorial boundaries and foreign 

sovereigns who failed to force their subjects to repair the harms inflicted. “Even in cases 

of ordinary transgressions, which are only subjects of civil prosecution . . . with a view to 

the recovery of damages . . . the subjects of two neighboring states [we]re reciprocally 

obliged to appear before the magistrate of the place where they [we]re accused of having 

failed in their duty” (2 id. § 76, at 162). The foreign subject’s sovereign was generally not 

permitted “to examine whether the accusation be true or false” and if the sovereign 

“refuse[d] to cause reparation to be made for the damage done by his subject,” the 

sovereign would “render[] himself in some measure an accomplice in the injury and 

become[] responsible for it” (2 id. § 76-77, at 163).

In Early American courts, the customary recognition of “law-of-nations sovereign 

immunity” was subject to a sovereign’s capacity and duty to govern its own territory. Early 

American courts confronting the question of sovereign immunity held that any immunity 

was subject to the consent of the host nation, as “[t]he jurisdiction of the nation within its 

own territory is necessarily exclusive and absolute. It is susceptible of no limitation not 

imposed by itself” (The Schooner Exchange v McFaddon, 7 Cranch [11 US] 116, 136 

[1812] [Marshall, Ch. J.]; accord The Santissima Trinidad, 7 Wheat [20 US] 283, 353 
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[1822] [Story, J.] [“(C)onsent and license is implied only from the general usage of nations, 

it may be withdrawn upon notice at any time, without just offence, and if afterwards such 

public ships come into our ports, they are amenable to our laws in the same manner as other 

vessels”]). In addition to recognizing a nation’s general capacity to withdraw its consent, 

Chief Justice Marshall also noted that sovereign immunity was never assumed to extend to 

certain types of cases. In a leading case on the subject, Chief Justice Marshall recognized 

“cases of implied assent” to foreign jurisdiction, including cases in which the sovereign 

“acquire[d] property in the country, whether real or personal” or “[i]n case of offences 

against existing laws, such as . . . breaking the peace when in port,” though this implication 

did not extend “where the sovereignty is concerned,” as in cases of “an ambassador” or the 

“sovereign himself” (The Schooner Exchange 7 Cranch [11 US] at 125). 

Of course, the historical practice of what we in retrospect call “sovereign immunity” 

between nation states does not fully account for the unique structure of the Federal 

Constitution, though it illustrates the background expectations the framers would have had 

when they designed the constitutional order (see Hyatt III, 139 S Ct at 1497 [“the 

Constitution affirmatively altered the relationships between the States, so that they no 

longer relate to each other solely as foreign sovereigns”]). In Federalist No. 81, Alexander 

Hamilton commented on the fact that a sovereign could not be sued in a court without its 

consent (see majority op at 7, quoting Federalist No. 81) and in the Debates of the Virginia 

Convention, James Madison asserted that “[i]t is not in the power of individuals to call any 

state into court” (Virginia Debate, June 20, 1788, reprinted in 3 The Debates in the Several 
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State Conventions of the Adoption of the Federal Constitution 531, 533 [J. Elliot ed., 

1866]). There is no indication, however, that either Hamilton or Madison meant to sweep 

aside well-established doctrines of implied consent. Hamilton’s statement responded to

concerns that citizens of foreign states would attempt to enforce a state’s debt contracts in 

federal court (see Hamilton, Federalist No. 81), an option that would not have been 

available to international creditors under the law of nations, for whom debts with a 

sovereign were tantamount to treaties, which bound only the conscience of the nation and 

would not have been enforceable in a court (see Vattel, Preliminaries, § 21, at lxiii-lxiv; 2 

Vattel, § 214, at 226-227; Jennifer Pitts, Boundaries of the International: Law and Empire 

70 [2018]; see also John J. Gibbons, The Eleventh Amendment and State Sovereign 

Immunity: A Reinterpretation, 83 Colum L Rev 1889, 1910-1912 [noting that Hamilton’s 

remark did not suggest a sweeping sovereign immunity]).3 Madison similarly made sure 

to qualify that “if a state should condescend to be a party, this court may take cognizance 

of it” (Madison, at 533; see also Gibbons at 1906 [noting that Madison’s statement “[i]n 

context . . . becomes more ambiguous”]). Indeed, an expansive reading of either remark 

would make little sense with article III, section 2, clause 1 of the Federal Constitution, 

3 Chisholm v Georgia (2 Dall [2 US] 419 [1793]) involved exactly the type of case that 

Hamilton warned against, and which would not have been cognizable under prevailing 

understandings of sovereign immunity—a foreign-state creditor’s attempt to use federal 

court to enforce a debt contract against the state of Georgia. Americans promptly rebuked 

the Federal Supreme Court with the Eleventh Amendment, an amendment designed to limit 

the jurisdiction of federal courts in cases like these (see generally Stephen E. Sachs & 

William Baude, The Misunderstood Eleventh Amendment, 169 U Pa L Rev 609, 626 

[2021]). However, the Eleventh Amendment—which explicitly only reaches diversity 

cases in federal courts—did not sweep so broadly as to preclude all suits.
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which clearly envisions some justiciable “Controversies . . . between a State and Citizens 

of another state.” 

Early American practice confirms the limits on sovereign immunity when 

government officials from foreign states or countries inflicted harm within a state’s 

territory. Americans generally expected to be able to use common law suits to hold 

government officials directly accountable for their misconduct; the government officials 

could then petition their respective legislatures for private bills indemnifying them for the 

judgment, thus obviating the need to sue states directly (see generally Jerry L. Mashaw, 

Reasoned Administration and Democratic Legitimacy 17 [2018]; James E. Pfander and 

Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government 

Accountability in the Early Republic, 85 NYU L Rev 1862, 1871-1876 [2010]; A True 

Federalist, Independent Chronicle, Mar 2 and 6, 1797, reprinted in Maeva Marcus ed., 5 

The Documentary History of the Supreme Court, 1789-1800, at 629, 630 [1994]). That 

expectation often extended to the agents and instrumentalities of foreign states, as 

Americans could often sue in their home state court if those officers or instrumentalities 

committed wrongs in the home state, owned property in the home state, engaged in 

commercial activity, or consented to suit in some other way (see Ann Woolhandler, 

Interstate Sovereign Immunity, 2006 S Ct Rev 249, 276-277 [2006]). 

Subsequent efforts to expand the scope of American sovereign immunity have 

largely left open the broad scope of the historical consent doctrine. In Hans v Louisiana, 

the Supreme Court explained that the Constitution should not be understood to permit 
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“anomalous and unheard-of proceedings or suits” in federal court, and that “state courts 

have no power to entertain suits by individuals against a state without its consent” (134 US 

1, 18 [1890] [emphasis added]). The spate of twentieth-century cases addressing sovereign 

immunity typically concerned the Eleventh Amendment and federal jurisdiction, not 

interstate sovereign immunity. As the United States Supreme Court noted in Nevada v 

Hall, its prior case law did not “answer the question whether the Constitution places any 

limit on the exercise of one’s State’s power to authorize its courts to assert jurisdiction over 

another State” (440 US 410, 421 [1979]). The Hall court answered that the Federal 

Constitution created no such limit, and that states extended immunities to one another as a 

matter “of state policy, rather than a constitutional command” (id. at 425). It was not until 

Hyatt III that the Supreme Court articulated a constitutional basis for a foreign state’s 

ability to assert sovereign immunity in another state’s court. 

Even under this new regime, however, the U.S. Supreme Court has been careful to 

qualify that “the Constitution bars suits [only] against nonconsenting States” (Hyatt III,

139 S Ct at 1496 [emphasis added]). In the analogous Eleventh Amendment context, the 

Supreme Court has found that the “[t]he States have consented . . . to some suits pursuant 

to the plan of the Convention or to subsequent constitutional Amendments” (Alden v 

Maine, 527 US 706, 755 [1999]). At this point, the list of implied consent includes 

bankruptcy proceedings (Central Va. Community College v Katz, 546 US 356, 379 [2006]); 

eminent domain proceedings (PennEast Pipeline Co., LLC v New Jersey, 141 S Ct 2244, 

2263 [2021]); the federal policy to build and keep a national military (Torres v Texas 
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Department of Public Safety, 142 S Ct 2455, 2460 [2022]); the enforcement power of the 

Fourteenth Amendment (see Fitzpatrick v Bitzer, 427 US 445, 456 [1976] [justifying the 

Fourteenth Amendment as an exception to sovereign immunity]); suits by other States 

(South Dakota v North Carolina, 192 US 286, 318 [1904]); and suits by the Federal 

Government (United States v Texas, 143 US 621, 646 [1892]).

III.

Admittedly, the Hyatt III regime is still somewhat terra incognita. However, the 

new sovereign immunity can still be waived. The touchstone principle is that “[e]ach 

State’s equal dignity and sovereignty under the Constitution implies . . . . the inability of 

one State to hale another into its courts without the latter’s consent” (Hyatt III, 139 S Ct at 

1497; see also PennEast Pipeline Co., LLC v New Jersey, 141 S Ct 2244, 2264 [2021] 

[Gorsuch, J., concurring]). If NJT submits to the jurisdiction of New York courts, then, it 

loses the ability to claim that its sovereignty has been violated—assuming, arguendo, that 

NJT (as opposed to the State of New Jersey itself) has any right to assert sovereign 

immunity in the first place.

Because NJT’s sovereign immunity claim falls into our jurisdictional exception, I 

must address the merits of its argument. To the extent that NJT might be entitled to a 

sovereign immunity defense, it and the state of New Jersey consented to New York 

jurisdiction in three ways. Because those three ways are independent and none has a logical 

or legal priority over the others, I discuss each below. First, NJT waived sovereign 

immunity by its litigation conduct: NJT did not assert a sovereign immunity defense at the 
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first opportunity after Hyatt III, waiting instead until it perfected its appeal to make this 

argument. Second, NJT waived any claim of sovereign immunity it might have had by 

operating a multimillion-dollar business within the State of New York. Third, the state of 

New Jersey waived any sort of sovereign immunity defense on NJT’s behalf by subjecting 

it to liability in New Jersey. 

A.

Hyatt III suggests that a state can waive its sovereign immunity by its litigation 

conduct (see 139 S Ct at 1491 n 1). The U.S. Supreme Court is clear that waiver by 

litigation conduct can express a state’s consent to jurisdiction (cf. Atascadero State Hosp. 

v Scanlon, 473 US 234, 238 [1985] [“if a State waives its immunity and consents to suit in 

federal court, the Eleventh Amendment does not bar the action”]). Because interstate 

immunity is rooted in the indignity of “compulsory judicial process” (id. at 1498), a 

“State’s voluntary appearance in [another State’s] court amounts to a waiver of its 

[sovereign] immunity,” as it does in the Eleventh Amendment context (cf. Lapides v Board 

of Regents of Univ. System of Ga., 535 US 613, 619 [2002] [describing the Eleventh 

Amendment context]; Petty v Tennessee-Missouri Bridge Comm’n, 359 US 275, 276 

[1959] [same]; Gunter v Atlantic Coast Line R. Co., 200 US 273, 284 [1906]; Clark v 

Barnard, 108 US 436, 447 [1883] [same]). 

Whatever the exact contours of the litigation-conduct waiver doctrine in the 

Eleventh Amendment context, a state may not assert the interstate sovereign immunity 

defense after it has allowed a case to proceed to judgment in another state’s tribunal, as 
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NJT has here. Permitting states to assert sovereign immunity after another court has tried 

and decided a case would let states abuse the Full Faith and Credit Clause, subverting the 

logic of federalism and needlessly stripping jurisdiction from the litigating state’s court. 

The “animating purpose of the full faith and credit command” is to make the states “ 

‘integral parts of a single nation throughout which a remedy upon a just obligation might 

be demanded as of right, irrespective of the state of its origin,’ ” instead of “ ‘independent 

foreign sovereignties, each free to ignore obligations created under . . . the judicial 

proceedings of the others’ ” (Baker by Thomas v General Motor Corp, 522 US 222, 232 

[1998], quoting Milwaukee County v M.E. White Co., 296 US 268, 277 [1935]). To that 

end, the Full Faith and Credit Clause ensures that a State “may not disregard the judgment 

of a sister State because it disagrees with the reasoning underlying the judgment or deems 

it to be wrong on the merits” (V.L. v E.L., 577 US 404, 407 [2016]). 

Allowing a state that has voluntarily litigated a case to the merits to subsequently 

assert sovereign immunity would let a state use the Full Faith and Credit clause to seek 

multiple trials and pit the tribunals of one state against another. A state may not obtain a 

judgment in a foreign tribunal and then—if dissatisfied with the result—claim that it was 

never bound by the foreign tribunal’s decision in the first place. Although this type of 

judgment shopping is possibly unavoidable in federal court because of the jurisdictionstripping wording of the Eleventh Amendment (see Schacht, 524 US at 394 [Kennedy, J., 

concurring]), it defies the structural logic of interstate sovereign immunity: permitting that 

type of judgment shopping would encourage States to avoid their own courts by litigating 
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first in foreign tribunals with the preclusive effect of the Full Faith and Credit Clause and 

then—if unsuccessful—to assert sovereign immunity as a “get-out-of-judgment-free” card. 

Indeed, in this case, if NJT were victorious in asserting its sovereign immunity defense, 

Ms. Henry would be barred by New Jersey’s statute of limitations from bringing her suit 

in New Jersey (see NJ Stat Ann § 59:8-8). When NJT decided to litigate this case in New 

York for five years, it surrendered the right to claim that the forum was inappropriate.

NJT argues that its decision to litigate this case through to a jury verdict is irrelevant 

because Hyatt III had not been decided until after Supreme Court issued its initial 

judgment. However, NJT did not assert its sovereign immunity defense in a timely manner. 

Hyatt III was decided on May 13, 2019. At the time, this matter was still pending in the 

trial court, which denied NJT’s motion to set aside the jury verdict on June 27, 2019. NJT 

made no effort to apprise the trial court of Hyatt III or assert a new defense based on it. 

NJT did not include any mention of Hyatt III or sovereign immunity in its notice of appeal 

on September 4, 2019. Not until it perfected its appeal on October 5, 2020 did NJT argue 

for the first time that sovereign immunity precluded Supreme Court from rendering a 

verdict. Its dilatory conduct constitutes a waiver.

B. 

The logic of Hyatt III supports Ms. Henry’s claim that NJT waived any sovereign 

immunity it might have had by choosing to conduct an ongoing business in the State of 

New York. Recognizing NJT’s consent to being sued in New York reflects the asymmetric 

nature of the sovereign interests in this case: New Jersey suffers little indignity when its 
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commercial transit business creates injuries within New York’s borders and is brought 

before New York courts to answer for those injuries. New Jersey’s consent to jurisdiction 

reflects its respect for New York’s important sovereign interests in governing the safety of 

its territory and protecting persons within its borders. 

New Jersey is “no longer [a] fully independent nation[]” and lacks the political 

power to avoid the legal resolution of New Yorkers’ grievances against it (see Hyatt III, 

139 S Ct at 1497; cf. Torres v Texas Department of Public Safety, 142 S Ct 2455, 2462 

[2022] [“States may be sued if they agreed their sovereignty would yield as part of the plan 

of the Convention . . . that is, if the structure of the original Constitution itself reflects a 

waiver of States’ sovereign immunity” (internal quotations omitted)]). The Constitution 

has stripped states of traditional remedies available to independent nation-states if foreign 

sovereigns failed to redress injuries within their borders, including the ability to engage in 

diplomacy, refuse sovereign immunity to the foreign sovereign, levy war (see Hyatt III, 

139 S Ct at 1497-1498), or bar foreign sovereigns from entering their territory (cf. C & A 

Carbone, Inc. v Town of Clarkstown, N.Y., 511 US 383, 390 [1994]; 2 Vattel § 94, at 169-

170 [“The sovereign may forbid the entrance of his territory either to foreigners in general 

or in particular cases, or to certain persons or for certain particular purposes, according as 

he may think it advantageous to the state . . . everyone is obliged to pay respect to the 

prohibition”]). In part to compensate for this loss of sovereignty, the Constitution imposed 

duties on states that they did not have before, and has turned some subjects that once were 

“decided by pure ‘political power’ before ratification” into ones that “now turn on . . . ‘rules 
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of law’ ” (id. at 1498, quoting Rhode Island v Massachusetts, 12 Pet [37 US] 657, 737 

[1838]). Indeed, a dispute that would be a “casus belli” between fully sovereign states is 

the quintessential example of when the United States Supreme Court may exercise its 

original jurisdiction, furnishing a tribunal worthy of such an important dispute (see State 

of Nebraska v State of Wyoming, 515 US 1, 8 [1995], quoting Mississippi v Louisiana, 506 

US 73, 77 [1992]). Whereas in the past a sovereign’s wrong might result in expulsion, 

retaliation, or even war, today the wrong results in legal process. Under Hall, the forum 

state’s tribunal would determine which state had jurisdiction; after Hyatt III, “federalism” 

guides our analysis instead (Hyatt III, 139 S Ct at 1498, quoting Hall, 440 US at 430 

[Blackmun, J., dissenting]).

Federal jurisprudence surrounding personal jurisdiction—which involves issues 

that “align closely with [the] treatment of” the concepts central to sovereign immunity (see 

majority op at 12)—underscores the way jurisdiction in a federalist system is sensitive to 

the parties’ underlying interests and the particular context of a given dispute. In personal 

jurisdiction cases, principles of “ ‘interstate federalism’ support jurisdiction” when the 

forum states have “significant interests at stake—‘providing [their] residents with a 

convenient forum for redressing injuries inflicted by out-of-state actors,’ as well as 

enforcing their own safety regulations” (Ford Motor Company v Montana Eighth Judicial 

District Court, 141 S Ct 1017, 1030 [2021], quoting Burger King Corp. v Rudzewicz, 471 

US 462, 473 [1985]). Indeed, “if another State were to assert jurisdiction in an 

inappropriate case, it would upset the federal balance, which posits that each State has a 
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sovereignty that is not subject to unlawful intrusion by other States” (J. McIntyre 

Machinery, Ltd. v Nicastro, 564 US 873, 884 [2011] [plurality op]). However, these 

considerations must be weighed against “the Due Process Clause” right of the defendant, 

which “act[s] as an instrument of interstate federalism” in addition to individual liberty and 

can “divest the State of its power to render a valid judgment” (Bristol-Meyers Squibb Co., 

137 S Ct at 1776, citing World-Wide Volkswagen Corp. v Woodson, 444 US 286, 294 

[1980]). The “primary focus” of the Due Process inquiry “is the defendant’s relationship 

to the forum State” (Bristol-Meyers Squibb Co., 137 S Ct at 1779). If a defendant is 

“essentially at home” in a State or “purposefully avails itself of the privilege of conducting 

activities within the forum State . . . by, for example, exploiting a market in the forum 

State” the federalism-enforcing Due Process Clause yields to the state interest in asserting 

jurisdiction over activities within its own boundaries (Ford Motor Company, 141 S Ct at 

1024 [internal quotation marks omitted]). 

In other words, well-established principles of jurisdiction in a federalist context 

establish that New York’s sovereign interests are relevant in determining when it has 

jurisdiction and the nature of NJT’s contacts and presence in the state of New York helps 

determine the extent to which it acquiesces to New York jurisdiction. In this case, New 

York has a strong interest in protecting the integrity of its territory, the safety of its roads 

and subjects, and its commercial prosperity whereas New Jersey has extensive, voluntary, 

and lucrative contacts within the State of New York such that we may conclude that it has 
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consented to jurisdiction in New York. The principles of federalism that underpin both 

personal jurisdiction and interstate sovereign immunity jurisprudence require nothing less.

A state’s ability to assert jurisdiction is heightened when it is governing its own 

territory. Although the framers of the Federal Constitution envisioned an integrated nation, 

they “also intended that the [s]tates retain many essential attributes of sovereignty, 

including, in particular, the sovereign power to try causes in their courts” (World-Wide 

Volkswagen, 444 US at 293; accord Bristol-Myers Squibb Co., 137 S Ct at 1780-1781). 

State boundaries have long played an important role in determining the jurisdiction of these 

courts (see World-Wide Volkswagen Corp., 444 US at 293 [“we have never accepted the 

proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and 

remain faithful to the principles of interstate federalism embodied in the Constitution”]). 

The jurisdictional importance of state boundaries is why “no State can apply its own law 

to interstate disputes over borders” (Hyatt III, 139 S Ct at 1498, citing Cissna v Tennessee, 

246 US 289, 295 [1918]; see also Texas Industries, Inc. v Radcliff Materials, Inc., 451 US 

630, 641 [1981]). New York and New Jersey are no strangers to this principle (see New 

Jersey v New York, 523 US 767 [1998]; State of New Jersey v People of State of New York, 

5 Pet [30 US] 284 [1831]).

New York’s interest in protecting the safety of its roads is strong, and NJT’s 

continued use of them is a basis from which we may infer consent. “Motor vehicles are 

dangerous machines, and, even when skillfully and carefully operated, their use is attended 

by serious dangers to persons and property” (Hess v Pawloski, 274 US 352, 356 [1927]; cf. 
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South Dakota v Neville, 459 US 553, 558-559 [1983]). To protect against these dangers, 

states may provide rules of the road that apply to “residents and nonresidents alike” (Hess, 

274 US at 356). States may assume that nonresidents who use the roads consent to a system 

that will require them “to answer for [their] conduct in the state where arise causes of action 

alleged against [them], as well as to provide for . . . claimant[s] a convenient method by 

which [they] may sue to enforce [their] rights” (id.). 

Furthermore, when a State operates a vast business within the boundaries of another 

state—as NJT does—it weakens any claim it might have to special treatment (see Bank of 

U.S. v Planters’ Bank of Georgia, 22 US 904, 907 [1824] [“It is, we think, a sound 

principle, that when a government becomes a partner in any trading company, it devests 

itself, so far as concerns the transactions of that company, of its sovereign character, and 

takes that of a private citizen”]; Bank of Com. of Kentucky v Wister, 27 US 318, 323 [1829] 

[extending this principle to a fully government-owned bank]; Louisville, C. & C.R. Co. v 

Letson, 2 How [43 US] 497, 550-551 [1844] [extending Planters’ Bank to state ownership 

share in railroad]; State of Ga. v City of Chattanooga, 264 US 472, 482-483 [1924] [“the 

acceptance by Georgia of the permission given it to acquire the railroad land in Tennessee 

is inconsistent with an assertion of its own sovereign privileges in respect of that land . . . 

and amounts to a consent that it may be condemned as may like property of others”]; see 

generally, Woolhandler, at 278-280 [discussing the “commercial/consent exception” to 

sovereign immunity, and explaining that “(p)erhaps the largest group of cases holding a 

state could be made a less-than-voluntary party were those arising from Georgia’s 
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ownership, with the approval of the Tennessee legislature, of a railroad in Tennessee”]). 

As we noted in Ehrlich-Bober & Co. v University of Houston, New York has a “recognized 

interest in maintaining and fostering its undisputed status as the preeminent commercial . . 

. nerve center of the Nation and the world . . . . That interest naturally embraces a very 

strong policy of assuring ready access to a forum for redress of injuries arising out of 

transactions spawned here” (49 NY2d 574, 581 [1980]). The “interest in providing a 

convenient forum is least subject to challenge when a transaction is centered here . . . and 

particularly when it is wholly commercial in character . . . . [A] State entering this 

jurisdiction specifically to take advantage of its unique commercial resources may be 

considered to have given up any claim of jurisdictional immunity by virtue of governmental 

capacity” (id.; see also Duetsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 72-

73 [2006]). Although Hyatt III may have changed the calculus and source of sovereign 

immunity, it did not change New York’s sovereign interests. 

In this case, then, New York’s sovereign interests are at their zenith while NJT’s are 

at their nadir. Having operated a lucrative business for decades, NJT has availed itself of 

New York’s roads, regulations, and customer base without exercising the type of sovereign 

authority that commands heightened constitutional respect. NJT has benefitted from the 

orderly operation of New York’s court system and largely complied with its rules of the 

road. In Hyatt III, the Franchise Tax Board of California entered Nevada briefly to enforce 

its own tax laws against one of its former citizens, in furtherance of which it committed 

torts against that former citizen within Nevada (see 139 S Ct at 1490-1491). California’s 
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“sovereign right to tax income” was a particularly important interest and its run-in with 

Nevada’s sovereignty was relatively minimal and incidental to its attempts to vindicate its 

plenary right to tax its residents (cf. Oklahoma Tax Commn v Chickasaw Nation, 515 US 

450, 466 [1995]). Here, by contrast, NJT has set up shop in New York, benefitted greatly 

from the use of our roads, access to our economy and the protection provided by our court 

system; it is being sued in New York for a tort committed in New York as to which New 

York’s interests dwarf those of New Jersey. NJT may not now claim that submitting to 

this same court system is an affront to its dignity.

C.

Notwithstanding the fact that NJT has waived any sovereign immunity it has via its 

litigation conduct and continuous and extensive operations in New York, the State of New 

Jersey has also statutorily waived any type of sovereign immunity NJT might have. States 

may pass statutes explicitly consenting to be sued (cf. Sossaman v Texas, 563 US 277, 284 

[2011] [discussing Eleventh Amendment sovereign immunity]). The operation of our own 

Court of Claims depends upon that principle (see Court of Claims Act § 8). In the Eleventh 

Amendment Context, a “State’s consent to suit in its own courts is not a waiver of its 

immunity from suit in federal court” (Sossaman, 563 US at 285 [emphasis added]). 

However, the “fundamental principle of equal sovereignty among the States” precludes 

New Jersey from making a similarly limited waiver with respect to the courts of other states 

(Hyatt III, 139 S Ct at 1497, quoting Shelby County v Holder, 570 US 529, 544 [2013] 

[emphasis omitted]).
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The United States Supreme Court has long held that a state may not refuse to apply 

the laws of another state when doing so reflects a “policy of hostility to the public Acts” of 

another state (Carroll v Lanza, 349 US 408, 413 [1955]). When New Jersey claimed that 

it could not exercise jurisdiction over claims sounding in New York law despite exercising 

jurisdiction over comparable claims based in New Jersey law, the United States Supreme 

Court intervened (see Broderick v Rosner, 294 US 629, 642-644 [1935]; see also Hughes 

v Fetter, 341 US 609, 611 [1951]). In Hyatt II, the Court applied that doctrine to 

immunities, holding that Nevada had to grant California the same immunity it provided to 

its own agencies—it could not apply “a special rule of law that evinces a ‘policy of 

hostility’ toward California” (Franchise Tax Bd. of California v Hyatt, 578 US 171, 176 

[2016] [hereinafter Hyatt II], quoting Franchise Tax Bd. of California v Hyatt, 538 US 488, 

499 [2003]). 

Here, New York and New Jersey have both waived sovereign immunity for quasistate commercial carriers, including NJT (see, e.g. NJ Stat Ann § 59:2-2; Public Authorities 

Law § 1212; 1276). New Jersey’s legislature and high court require that NJT be held liable 

to the same extent as a comparably positioned private party (see NJ Stat Ann § 59:2-2; 

59:3-1; Maison v New Jersey Transit Corp., 245 NJ 270, 289-291 [2021]). Indeed, under 

New Jersey law, NJT is held to a “heightened common carrier” standard of negligence—

as New Jersey’s high court noted, “the duty to provide safe travel to passengers on NJ 

Transit buses is no less urgent than the duty imposed on privately owned bus operators” 

(Maison, 254 NJ at 291-292). Nevertheless, NJT asks us to dismiss this case on the grounds 
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that “New York courts permit the dismissal of actions against the State of New York on 

sovereign immunity grounds.” 

NJT would require us to apply a special rule exempting it from liability. Its rule 

would provide NJT treatment not only more favorable than New York applies to its own 

transit authorities but also more favorable than NJT would receive in its own home-state 

court. Indeed, under New Jersey’s venue requirements, it is not clear that Ms. Henry would 

be entitled to sue NJT by right anywhere, even in the state of New Jersey (see Colt v New 

Jersey Tr. Corp., 206 AD3d 126, 128 [1st Dept 2022] [interpreting NJ Rules of Ct rule 4:3-

2 (a)]; but see NJ Rules of Ct Rule 1:1-2 [a] [“Unless otherwise stated, any rule may be . . 

. dispensed with by the court in which the action is pending if adherence to it would result 

in an injustice”]). 

NJT’s insistence that it may be haled in front of New Jersey courts but not New 

York courts is not based on any coherent rationale and is in fact somewhat ironic given that 

Ms. Henry, a New Jersey resident, is exactly the type of person New Jersey was trying to 

protect by waiving NJT’s sovereign immunity. NJT proposes a “policy of hostility to the 

public Acts” of New York (Hyatt III, 139 S Ct at 1497, quoting Hyatt II, 578 US 176). 

NJT defends its “special and discriminatory rule” with “little more than a conclusory 

statement [implicitly] disparaging [New York’s] own . . . judicial” system (Hyatt II, 578 

US at 178). “A constitutional rule that would permit this kind of discriminatory hostility 

is likely to cause chaotic interference by some States into the internal . . . affairs of others” 

(id. at 178-179) by punishing NJT for accidents in Trenton but authorizing it to wreak 
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havoc on the streets of Philadelphia or New York City or forcing persons injured in those 

other states—even those residing there and never touching New Jersey soil—to press their 

claims in New Jersey. 

IV.

Instead of offering guidance to lower courts about how to confront that problem, we 

have rewritten federal rules of waiver and jurisdiction as well as our own preservation 

doctrine to dodge the question. However, the issue is too common and the law too unsettled 

for us to evade it for long. Every NJT bus and train has the potential to inflict injuries when 

it enters New York. The persistent legal uncertainty surrounding NJT risks leaving those 

injured by NJT within NY’s borders without protection and legislators and regulators 

without guidance.

We are not, however, the only body that can provide a solution. New York could 

negotiate a compact with New Jersey to make NJT unambiguously subject to the 

jurisdiction of New York courts. Even more expediently, the New Jersey legislature could 

statutorily prevent NJT from asserting sovereign immunity in New York courts, much as 

it prevented NJT form doing so in response to certain federal claims (see Robinson v New 

Jersey Tr. Rail Operations, Inc., 776 Fed Appx 99, 100 [3d Cir 2019]). As this case 

demonstrates, in taking care of New Yorkers, New Jersey would take care of its own. 
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Appeal dismissed, without costs, upon the ground that no substantial constitutional 

question is directly involved. Opinion by Judge Singas. Acting Chief Judge Cannataro 

and Judges Rivera and Garcia concur. Judge Wilson dissents in an opinion, in which 

Judge Troutman concurs.

Decided March 21, 2023