New York State Court of Appeals
Preservation – Appellate jurisdiction
Background: The plaintiff was injured while riding on a bus owned by the defendant. A jury found in the plaintiff’s favor. On appeal, the Appellate Division found that the defendant waived its sovereign immunity defense through its litigation conduct. At issue is whether the Court of Appeals has the power to hear the underlying appeal under NY Constitution Article VI Section 3 and Section 5601(b)(1) of the Civil Practice Law and Rules. The court must consider the jurisdictional nature of interstate sovereign immunity to ascertain whether the defendants’ sovereign immunity defense is exempt from our general preservation rules.
Ruling: The Court of Appeals dismissed the appeal. The court held 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 the defendants asserted their sovereign immunity for the first time on appeal, the argument is unpreserved and there is no directly involved constitutional questions supporting this appeal.
Lawrence McGivney for the appellants; Brian J. Isaac for the respondent.