No. CTQ-2017-00001
State of New York
Court of Appeals
IN RE: WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE LITIGATION
STANISLAW FALTYNOWICZ, et al.,
Appellants,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY, et al.,
Respondents.
(caption continues on inside front cover)
On the Certified Questions from the United States Court of Appeals
for the Second Circuit in Docket No. 15-2181 (L)
REPLY BRIEF AND ADDENDUM FOR
APPELLANT THE STATE OF NEW YORK
BARBARA D. UNDERWOOD
Solicitor General
STEVEN C. WU
Deputy Solicitor General
ANDREW W. AMEND
Senior Assistant Solicitor General
ERIC DEL POZO
Assistant Solicitor General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General
State of New York
Attorney for the State of New York
120 Broadway
New York, NY 10271
(212) 416-8022
(212) 416-8962 (facsimile)
Dated: September 28, 2017
(caption continued from front cover)
SANTIAGO ALVEAR,
Appellant,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY,
Respondent.
PETER CURLEY, MARY ANN CURLEY,
Appellants,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY,
Respondent.
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................ iii
PRELIMINARY STATEMENT ........................................................ 1
ARGUMENT .................................................................................... 4
POINT I
NO PARTICULARIZED INQUIRY IS NEEDED TO DETERMINE
THAT THE BATTERY PARK CITY AUTHORITY LACKS THE
POWER TO CHALLENGE STATE STATUTES AS
UNCONSTITUTIONAL ...................................................................... 4
A. BPCA Concedes That It Shares the Essential
Characteristics That Bar Municipalities and Other
Public Corporations from Challenging the
Constitutionality of State Statutes. ................................ 4
B. BPCA Misreads the Governing Case Law....................... 6
1. The particularized-inquiry test urged by
BPCA answers a different question from
whether a public authority may challenge acts
of the Legislature. ..................................................... 6
2. The cases cited by BPCA are not to the
contrary. .................................................................. 10
a. Patterson v. Carey was not a
particularized-inquiry case and is readily
distinguishable in any event. ........................... 10
b. The other cases cited by BPCA likewise
do not support BPCA’s position. ..................... 15
ii
TABLE OF CONTENTS (cont'd)
Page
3. In any event, a particularized inquiry would
compel the conclusion that BPCA may not
raise its constitutional challenge here. .................. 20
C. BPCA Does Not Qualify for Any Exception
Allowing It to Challenge State Laws Despite Its
Status as a Public Authority. ........................................ 22
POINT II
JIMMY NOLAN’S LAW SATISFIES THE REQUIREMENTS OF
DUE PROCESS .............................................................................. 25
A. The Applicable Standard Is Reasonableness, in
Light of BPCA’s Status as a Public Authority. ............. 25
B. BPCA Fails to Show That Jimmy Nolan’s Law Is
Unconstitutional No Matter What Standard Is
Applied. .......................................................................... 27
1. Jimmy Nolan’s Law was a reasonable
response to a situation that reasonably called
for a remedy. ........................................................... 27
2. Jimmy Nolan’s Law was justified by a serious
injustice and exceptional circumstances. ............... 33
CONCLUSION ............................................................................... 36
iii
TABLE OF AUTHORITIES
Cases Page(s)
Aristy-Farer v. State of New York,
143 A.D.3d 101 (1st Dep’t 2016) ................................................ 24
Black Riv. Regulating Dist. v. Adirondack League Club,
307 N.Y. 475 (1954) ......................................................... 5, 14, 17
Bordeleau v. State,
18 N.Y.3d 305 (2011) ................................................................... 7
Capital District Regional Off-Track Betting Corp. v. Levitt,
65 A.D.2d 842 (3d Dep’t 1978) ............................................. 16, 18
City of New York v. State of New York,
86 N.Y.2d 286 (1995) ..................................................... 22, 23, 24
Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co.,
70 N.Y.2d 382 (1987) ............................................................... 4, 8
Collins v. Manhattan & Bronx Surface Tr. Operating Auth.,
62 N.Y.2d 361 (1984) ................................................................... 7
County of Rensselaer v. Regan,
80 N.Y.2d 988 (1992) ................................................................. 23
Farrington v. State of New York,
248 N.Y. 112 (1928) ................................................................... 29
Felder v. Casey,
487 U.S. 131 (1988) .................................................................... 32
Gallewski v. H. Hentz & Co.,
276 A.D. 219 (1st Dep’t 1949) .................................................... 26
Gallewski v. H. Hentz & Co.,
301 N.Y. 164 (1950) ............................................................. 25, 27
iv
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
Hardy v. New York City Health & Hosps. Corp.,
164 F.3d 789 (2d Cir. 1999) ....................................................... 32
Hymowitz v. Eli Lilly & Co.,
73 N.Y.2d 487 (1989) ................................................................. 31
In re World Trade Ctr. Lower Manhattan Disaster Site Litig.,
44 F. Supp. 3d 409 (S.D.N.Y. 2014) ........................................... 35
John Grace & Co. v. State Univ. Constr. Fund,
44 N.Y.2d 84 (1978) ................................................................. 7, 9
Malone v. State of New York,
1 N.Y.2d 837 (1956) ................................................................... 18
Matter of Board of Educ. of Roosevelt Union Free School
Dist. v. Board of Trustees of State Univ. of N.Y.,
282 A.D.2d 166 (3d Dep’t 2001) ................................................. 24
Matter of Board of Educ. of Union Free School Dist. No. 1 of
Towns of Bethlehem, Coeymans & New Scotland v. Wilson,
303 N.Y. 107 (1951) ................................................................... 14
Matter of County of Albany v. Hudson Riv.-Black Riv.
Regulating Dist.,
97 A.D.3d 61 (3d Dep’t 2012) ..................................................... 18
Matter of County of Chemung v. Shah,
28 N.Y.3d 244 (2016) ................................................................. 16
Matter of Jeter v. Ellenville Cent. School Dist.,
41 N.Y.2d 283 (1977) ........................................................... 11, 13
Matter of Lakeland Water Dist. v. Onondaga County Water Auth.,
24 N.Y.2d 400 (1969) ................................................................... 8
v
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
Matter of McCann v. Walsh Construction Co.,
282 A.D. 444 (3d Dep’t 1953) ............................................. passim
Matter of New York County DES Litig.,
89 N.Y.2d 506 (1997) ................................................................. 30
Matter of New York Post Corp. v. Moses,
10 N.Y.2d 199 (1961) ................................................................... 9
Matter of Plumbing, Heating, Piping & A.C. Contrs.
Assn. v. New York State Thruway Auth.,
5 N.Y.2d 420 (1959) ............................................................... 8, 18
Matter of Ruffino v. Rosen & Sons,
142 A.D.2d 177 (3d Dep’t 1988) ................................................. 16
New York Charter Schools Ass’n, Inc. v. DiNapoli,
13 N.Y.3d 120 (2009) ................................................................. 19
New York Charter Schools Ass’n, Inc. v. DiNapoli,
60 A.D.3d 119 (3d Dep’t 2009) ................................................... 19
New York Charter Schools Ass’n, Inc. v. DiNapoli,
857 N.Y.S.2d 450 (Sup. Ct. Albany County 2008) .................... 18
Northern Elec. Power Co., L.P. v. Hudson Riv.-Black
Riv. Regulating Dist.,
122 A.D.3d 1185 (3d Dep’t 2014) ............................................... 18
Patterson v. Carey,
41 N.Y.2d 714 (1977) ............................................... 10, 11, 12, 13
People v. Miller,
70 N.Y.2d 903 (1987) ................................................................... 7
Purcell v. Regan,
126 A.D.2d 849 (3d Dep’t 1987) ................................................. 23
vi
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
Robinson v. Robins Dry Dock Repair Co.,
238 N.Y. 271 (1924) ....................................................... 27, 31, 33
Ruotolo v. State of New York,
83 N.Y.2d 248 (1994) ........................................................... 27, 28
Sanger v. City of Bridgeport,
124 Conn. 183 (1938) ................................................................. 24
Constitutional Provisions
N.Y. Const. art. XVIII, § 1 .............................................................. 21
Laws
State
C.P.L.R. 214-c ................................................................................. 30
Education Law
§ 216-a ........................................................................................ 19
§ 2851 ................................................................................... 19, 20
§ 2852 ......................................................................................... 20
§ 2853 ......................................................................................... 19
General Construction Law § 66 ..................................................... 19
Ch. 99, 1998 N.Y. Laws 2710 ........................................................... 7
Penal Law § 175.35 .......................................................................... 7
Public Authorities Law
§ 1971 ......................................................................................... 21
§ 1973 ........................................................................................... 5
§ 1978 ......................................................................................... 14
§ 1981 ......................................................................................... 21
vii
TABLE OF AUTHORITIES (cont’d)
Laws Page(s)
Federal
Air Transportation Safety and System Stabilization Act,
Pub L. 107-41, § 408, 115 Stat. 230 (2001) ............................... 32
49 U.S.C. § 40101 note ................................................................... 32
Miscellaneous Authorities
Governor Andrew M. Cuomo, Governor Cuomo Signs Legislation
Expanding Unlimited Sick Leave Benefit for New Yorkers
Who Participated in 9/11 Response Efforts (Sept. 11, 2017),
https://www.governor.ny.gov/news/governor-cuomo-signs-
legislation-expanding-unlimited-sick-leave-benefit-new-
yorkers-who ................................................................................ 35
Hudson River-Black River Regulating District,
http://www.hrbrrd.com .............................................................. 18
N.Y. State Educ. Dep’t, Charter School Office,
Starting a Charter School,
http://www.p12.nysed.gov/psc/startcharter/home ..................... 20
Sponsor’s Mem., reprinted in Bill Jacket for ch. 440 (2009) ......... 30
PRELIMINARY STATEMENT
The Battery Park City Authority (BPCA) has mischaracterized
New York law on both questions certified to this Court by the
United States Court of Appeals for the Second Circuit. Properly
understood, New York law does not support BPCA’s constitutional
challenge to General Municipal Law § 50-i(4), commonly known as
Jimmy Nolan’s Law.
First, no “particularized inquiry” is appropriate or necessary
to determine whether BPCA may challenge a state statute under
the State Constitution. BPCA does not dispute that it is a
legislatively created entity performing governmental ends specified
by the Legislature under authority derived exclusively from the
Legislature. Under this Court’s precedents, those points preclude
BPCA from raising a state due process claim to prevent the
Legislature from further adjusting its powers and responsibilities,
without the need for any particularized inquiry on that question.
BPCA acknowledges that municipalities, state agencies, and
other public entities are barred from challenging state legislation
under this well-established principle. But it asserts that public
2
authorities are different because they are designed to pursue their
governmental functions with greater flexibility and independence
than traditional state agencies, and their debts are not guaranteed
by the State. These differences do not give public authorities any
special warrant to challenge legislative enactments. The point of
their relative independence and flexibility is to allow them to serve
their governmental ends more efficiently. Insulating them from the
Legislature’s continued supervision would undercut rather than
support that end.
Second, even if BPCA could challenge Jimmy Nolan’s Law,
any such challenge would be meritless. Contrary to BPCA’s
arguments, a statute reviving claims against public entities need
only satisfy a test of “reasonableness” and not any more stringent
standard. Jimmy Nolan’s Law easily passes that test. Indeed, the
statute would pass muster even under the comparatively higher
“serious injustice” standard advocated by BPCA.
Jimmy Nolan’s Law was passed to aid a limited class of
workers who, through no fault of their own, could easily fail to
recognize within ninety days the connection between their respiratory
3
symptoms and their post-9/11 cleanup work, especially given that
many workers received false assurances of the safety of their
worksites. The statute’s limited effect in reviving time-barred claims
against public corporations for one year is a reasonable and appropriate
means of addressing the unfairness of the prior regime. And the
statute further reasonably served the State’s important interests in
assuring all those who respond to unprecedented disasters like the
destruction of the Twin Towers that their needs will not be
forgotten should they be injured in the course of their heroic efforts.
4
ARGUMENT
POINT I
NO PARTICULARIZED INQUIRY IS NEEDED TO
DETERMINE THAT THE BATTERY PARK CITY AUTHORITY
LACKS THE POWER TO CHALLENGE STATE STATUTES AS
UNCONSTITUTIONAL
A. BPCA Concedes That It Shares the Essential
Characteristics That Bar Municipalities and
Other Public Corporations from Challenging
the Constitutionality of State Statutes.
BPCA acknowledges that most public entities—including
municipalities and state agencies—are deemed to be creatures of
the State and are thus barred from challenging state statutes under
the State Constitution. Br. for Respondent Battery Park City
Authority (BPCA Br.) at 13. Nonetheless, BPCA argues for a different
rule for public benefit corporations on the ground that they “enjoy,
for some purposes, an existence separate and apart from the State”
(id. at 11), and that “‘a particularized inquiry is necessary to
determine whether—for the specific purpose at issue—the public
benefit corporation should be treated like the State’” (id. at 13
(quoting Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382,
387 (1987))).
5
No particularized inquiry is required, however, where the
“specific purpose at issue” is an attempt by a public authority to
assert due process rights against the Legislature. BPCA concedes
that, like every other public authority, it was created by the
Legislature and exists only to serve ends selected by the Legislature
using powers granted by the Legislature.1 Id. at 12, 29. But these
are the very characteristics that bar cities, school districts, fire
districts, and all other public corporations from challenging the
constitutionality of legislative acts, unless one of a few narrow
exceptions applies (and none applies here, see infra at 22-24).
The inability of such entities to challenge state laws on
constitutional grounds is a function of the Legislature’s “supreme”
authority over its creatures and “absolute discretion” to control
“[t]he number and nature of [their] powers.” Black Riv. Regulating
1 BPCA implies that it is not subject to dissolution at the will
of the Legislature (BPCA Br. at 27-28) because of a statutory
provision that BPCA will not be terminated “so long as the authority
shall have bonds, notes and other obligations outstanding,” see
Public Authorities Law § 1973(6). But as explained in the State’s
opening brief (at 35 n.6), that statute does not confer constitutional
rights on BPCA.
6
Dist. v. Adirondack League Club, 307 N.Y. 475, 487-88 (1954). And
the Legislature retains such plenary authority no matter what type
of public corporation is being discussed. Thus, no particularized
inquiry is required because no set of circumstances would alter the
essential nature of the relationship between public authorities like
BPCA and the Legislature.
B. BPCA Misreads the Governing Case Law.
1. The particularized-inquiry test urged by
BPCA answers a different question from
whether a public authority may challenge
acts of the Legislature.
BPCA misplaces its reliance on the “particularized inquiry”
test. That test is not intended to determine whether a public
authority may challenge a state law on state constitutional grounds,
but instead to determine the relationship between a public entity
and non-state parties. Specifically, the “particularized inquiry” test
focuses on whether a specific law or doctrine that is applicable to
the State’s relationship to third parties also extends to a public
authority’s relationship to those parties. This test does not address
7
the distinct question of whether the public authority possesses
constitutional rights against the State itself.
Public authorities are often not constrained by statutes or
constitutional provisions that restrict the State or its political
divisions in their relationships with private persons or entities. See,
e.g., Bordeleau v. State, 18 N.Y.3d 305, 316 (2011) (public benefit
corporation not subject to constitutional bar on gifting or lending
state money); Collins v. Manhattan & Bronx Surface Tr. Operating
Auth., 62 N.Y.2d 361, 365 (1984) (same, with respect to constitutional
restrictions on hiring and promoting employees as specified in the
civil service law);2 John Grace & Co. v. State Univ. Constr. Fund,
44 N.Y.2d 84, 87 (1978) (public benefit corporation not required to
2 Public authorities are frequently not treated as state entities
in their relationship with their employees. Thus, when the
employee of a public benefit corporation filed false time sheets with
his employer, he did not commit the crime of offering a false
instrument for filing “with intent to defraud the state,” Penal Law
§ 175.35, see People v. Miller, 70 N.Y.2d 903, 907 (1987), until that
statute was amended to specifically add false filings with public
benefit corporations as a basis for liability. See Ch. 99, 1998 N.Y.
Laws 2710, 2710-11. The principle that public authorities are not
necessarily “the State” in relation to their employees has no bearing
on whether a public authority is so distinct from the State that it
may assert constitutional rights against the State itself.
8
make equitable contract adjustments in favor of contractors under
statutes requiring state agencies to make such adjustments);
Matter of Plumbing, Heating, Piping & A.C. Contrs. Assn. v. New
York State Thruway Auth., 5 N.Y.2d 420, 422-23 (1959) (public
authority not subject to statutory restrictions on selecting contractors
to perform aspects of state construction contracts). And similarly,
public authorities are not necessarily entitled to certain advantages
that are afforded to the State. See Matter of Lakeland Water Dist.
v. Onondaga County Water Auth., 24 N.Y.2d 400, 405-06 (1969)
(public benefit corporation not entitled to dismissal of action brought
against it in Supreme Court, as State would be, for lack of subject-
matter jurisdiction); cf. Clark-Fitzpatrick, 70 N.Y.2d at 387 (public
benefit corporation was entitled, like state agency, to immunity
from punitive damages in tort cases).
As these decisions demonstrate, the purpose of the
particularized-inquiry test is to determine whether a particular
provision governing state entities was intended to apply to a public
authority—not to determine whether the public authority may
challenge a provision that was indisputably intended to apply to it.
9
The particularized-inquiry test is thus designed to enforce the
“constitutional and legislative policy that public authorities should
be subjected only to those procedures which have been specifically
mandated.” Matter of New York Post Corp. v. Moses, 10 N.Y.2d 199,
203 (1961).
That test has no relevance here. If there were a dispute about
whether the Legislature intended to subject BPCA to Jimmy
Nolan’s Law, a “particularized inquiry” might help to resolve that
dispute, but there is not. Cf., e.g., John Grace & Co., 44 N.Y.2d at
88-89 (undertaking particularized inquiry to determine whether
public benefit corporation should be identified with State “for
purposes of the applicability” of statutes affecting contracts awarded
“by the state” (quotation marks omitted)). The dispute here is about
whether BPCA may challenge the validity of a state statute that
was clearly written to apply to it. And that question is answered
not by a particularized inquiry into the nature of the public benefit
corporation, but rather by the general principle that a public benefit
corporation may not challenge on constitutional grounds the
10
authority of the Legislature to adjust the law governing its rights
and responsibilities to serve the public interest.
2. The cases cited by BPCA are not to the
contrary.
BPCA cites a handful of cases in which a public entity raised
a constitutional challenge to a state statute. But none of those cases
establishes that a public authority should be treated differently
from other public entities for purposes of constitutional challenges
to state legislation.
a. Patterson v. Carey was not a
particularized-inquiry case and is
readily distinguishable in any event.
BPCA relies most heavily on Patterson v. Carey, 41 N.Y.2d
714 (1977). See BPCA Br. at 18-19, 27, 30-34. But Patterson does
not help BPCA, for several reasons.
First, as the State noted in its opening brief (at 40-41),
Patterson addressed the issue of the Jones Beach Parkway Authority’s
standing in passing, in a single sentence, in a case where private
plaintiffs were suing the State in addition to the Parkway Authority
and no party contested the Parkway Authority’s standing or capacity
11
to sue. Patterson’s treatment of the Parkway Authority’s standing
thus does not undermine this Court’s many more fully reasoned
decisions refuting BPCA’s contentions.
Second, Patterson’s one-sentence comment on the Parkway
Authority’s standing did not undertake any particularized inquiry
into the Parkway Authority’s nature and function, or mention its
status as a public benefit corporation at all. Patterson, 41 N.Y.2d at
719 n.*. Indeed, this Court’s footnote did not cite any authority
involving public benefit corporations, but instead cited only a case
rejecting two municipal challengers’ assertion of constitutional
rights against the State. See id. (citing Matter of Jeter v. Ellenville
Cent. School Dist., 41 N.Y.2d 283, 287 (1977)). Thus, neither the
relevant text of Patterson nor the citation supporting it
demonstrates that the Parkway Authority’s status a public benefit
corporation, as opposed to a different type of public corporation, had
any relevance at all.
Third, as noted in the State’s opening brief (at 40), Patterson
did not suggest that the Parkway Authority itself had constitutional
rights—only that its bondholders had such rights. Patterson thus
12
stands, at most, for the proposition that a public benefit corporation
may participate in or raise a constitutional challenge in certain
circumstances when a statute violates its bondholders’ rights. But
Jimmy Nolan’s Law does not violate the rights of BPCA’s creditors.
BPCA argues otherwise by speculating that Jimmy Nolan’s Law
“might impair” (BPCA Br. at 33) its debt obligations and
characterizing Patterson as conferring standing on a public
authority to challenge any law that “[n]egatively affects the entity’s
finances and threatens to impair obligations to bondholders” (id. at
32). But Patterson does no such thing. The statute at issue there did
not “threaten to impair” obligations to bondholders: this Court
agreed with the bondholders that it directly violated their express
contractual rights.
At issue in Patterson was a statute rescinding a toll increase
adopted by the Parkway Authority after toll revenues declined in
the wake of the first energy crisis in the early 1970s. 41 N.Y.2d at
716, 718. The offending feature of the statute was not that it affected
the Parkway Authority’s finances, but that it violated a specific
“covenant with the holders of authority bonds,” by which “the State
13
pledged to vest the authority with the power to raise tolls, in its sole
discretion, if toll revenues become insufficient to meet” its needs.3
Id. at 721 (emphasis added). The toll-rescission statute thus violated
an “important security provision” of the bondholders’ contracts,
thereby violating their rights under the Contract Clause of the
Federal Constitution and the Due Process Clause of the State
Constitution.4 Id. at 722 (quotation marks omitted).
3 The statutes establishing the Parkway Authority’s rights to
set and collect tolls and the State’s pledges not to interfere with
those rights were set forth in the then-effective provisions of Public
Authorities Law §§ 105-b(5), 158, and 158-a(1), copies of which are
included in an addendum hereto.
4 Because this Court concluded that the constitutional rights
of bondholders were violated, its treatment of the Parkway
Authority’s standing may be understood as resting on a narrow
exception mentioned in Matter of Jeter that allows municipalities
to contest the validity of statutes that would force them to “violate
a constitutional proscription,” 41 N.Y.2d at 287. Under this reading,
complying with the toll-rescission statute by collecting the reduced
toll would have meant that the Parkway Authority was by that very
act violating bondholders’ constitutional rights. Understanding
Patterson in this way—as an application of one of the few narrow
exceptions to the rule that public corporations may not assert
constitutional challenges to state laws—would be consistent with
this Court’s holdings that the mere issuance of debt not guaranteed
by the State does not give public corporations “an independent
status by which they have standing, either as a body politic or as
individuals, to test the validity of” state legislation “or to protect the
14
The present case is not comparable. BPCA does not and
cannot identify any contractual right of its bondholders infringed
by Jimmy Nolan’s Law. It cites only the State’s pledge not to impair
BPCA’s statutory rights (i) “to acquire, lease, mortgage or dispose
of real or personal property or any interest therein or construct,
improve, enlarge, operate and maintain the project”; (ii) “to fix,
establish and collect the rates, rentals, fees and other charges referred
to in this act”; or (iii) “to fulfill the terms of any agreements made
with the holders of the bonds and notes, or in any way impair the
rights and remedies of such bondholders and noteholders.” Public
Authorities Law § 1978 (cited in BPCA Br. at 27).
Jimmy Nolan’s Law does not impair any of those rights. It
affects only BPCA’s right to assert a notice-of-claim defense to tort
liability. The statute in no way restricts BPCA’s rights to develop,
use, and dispose of its property, or to charge rents and other fees to
generate revenue. Moreover, as the State pointed out in its opening
interests of creditors.” Black Riv. Regulating Dist., 307 N.Y. at 489;
see also Matter of Board of Educ. of Union Free School Dist. No. 1
of Towns of Bethlehem, Coeymans & New Scotland v. Wilson, 303
N.Y. 107, 115 (1951).
15
brief (at 42 n.8), BPCA’s only outstanding bonds were issued in
2009 and 2013, after Jimmy Nolan’s Law had been enacted and
before it had been challenged. It makes no sense to say that Jimmy
Nolan’s Law somehow violated an agreement with BPCA’s
bondholders when the law was in effect at the time those bondholders
purchased their bonds. The State could not have agreed to refrain
from enacting a law already in effect, and investors who purchased
BPCA’s bonds did so with full awareness of its potential (however
remote) to affect their ability to be paid.
b. The other cases cited by BPCA
likewise do not support BPCA’s
position.
The other cases BPCA cites also do not support its argument.
First, the question at issue in this appeal was not even presented,
let alone decided, in Matter of McCann v. Walsh Construction Co.,
282 A.D. 444 (3d Dep’t 1953), aff’d, 306 N.Y. 904 (1954) (“McCann”)
(see BPCA Br. at 19-20). In that case, the relevant public entity—a
state workers’ compensation fund—participated in the litigation
alongside a private party, and the issue of whether the fund could
have challenged the constitutionality of a statute by itself accordingly
16
was not presented. See McCann, 282 A.D. at 446; see also Matter of
County of Chemung v. Shah, 28 N.Y.3d 244, 262 (2016) (argument
that municipality lacks ability to challenge acts of Legislature can
be waived). When the Third Department did squarely address this
issue in a subsequent case, Matter of Ruffino v. Rosen & Sons, it
held that a state workers’ compensation fund “stands in the position
of a political subdivision of the State and cannot claim rights under
the Constitution against State action.” 142 A.D.2d 177, 181 (3d
Dep’t 1988), aff’d on op. below, 74 N.Y.2d 861 (1989).
Second, BPCA’s arguments are undermined, not supported,
by Black River Regulating District (see BPCA Br. at 29-23), and
Capital District Regional Off-Track Betting Corp. v. Levitt, 65
A.D.2d 842 (3d Dep’t 1978) (see BPCA Br. at 16 n.3). The essential
characteristics that led this Court to conclude that the Black River
Regulating District lacked authority to challenge the constitutionality
of acts of the Legislature are true for all public benefit corporations,
including BPCA. As this Court explained, the District performed
“governmental functions” to achieve “a State purpose” for the
“public health, safety and welfare,” such that its directors were “only
17
trustees for the common good.” Black Riv. Regulating Dist., 307
N.Y. at 489. The Legislature accordingly granted the District certain
powers to achieve its ends, but “[i]nherent in the grant of legislative
power is the plenary power to alter or revoke.” Id. The same is true
here: BPCA does not, and cannot, identify any power it possesses
that was not conferred by the Legislature or subject to the
Legislature’s continued supervision.
Furthermore, neither Black River Regulating District nor
Capital District Regional Off-Track Betting Corp. suggests that a
particularized inquiry is necessary to determine that a public
benefit corporation lacks the ability to challenge state legislation.
Both based their conclusions on the fact that the public authorities
at issue were public entities created by the Legislature to perform
public functions. The same is true of BPCA, which serves public
purposes as defined in Public Authorities Law § 1971 and has no
private owners or shareholders.
BPCA asserts that Black River Regulating District is not
applicable at all because the state entity in that case was not a
public benefit corporation, but BPCA is mistaken. Only five years
18
after its decision in Black River Regulating District, this Court
identified the same entity as a “public authority”—a term BPCA
concedes is synonymous with “public benefit corporation” (see
BPCA Br. at 10)—that was independent of the State for certain
purposes. See Matter of Plumbing, Heating, Piping & A.C. Contrs.
Assn., 5 N.Y.2d at 424 (citing Malone v. State of New York, 1 N.Y.2d
837 (1956)). And both the District itself and this State’s appellate
courts describe the same entity as a “public benefit corporation”
today.5 Capital District Regional Off-Track Betting Corp., moreover,
reinforces that Black River Regulating District applies to public
benefit corporations, in any event. See 65 A.D.2d at 843-44.
Finally, BPCA’s position is not supported by the trial court’s
decision in New York Charter Schools Ass’n, Inc. v. DiNapoli, 857
5 See Hudson River-Black River Regulating District,
http://www.hrbrrd.com; Northern Elec. Power Co., L.P. v. Hudson
Riv.-Black Riv. Regulating Dist., 122 A.D.3d 1185, 1186 (3d Dep’t
2014) (Stein, J.); Matter of County of Albany v. Hudson Riv.-Black
Riv. Regulating Dist., 97 A.D.3d 61, 63 (3d Dep’t 2012). The
essential powers and functions of the District have not changed
over time—since the 1920s, it has operated dams and reservoirs for
the purpose of regulating upstate river flows. See Northern Elec.
Power Co., 122 A.D.3d at 1186.
19
N.Y.S.2d 450, 457 (Sup. Ct. Albany County 2008), rev’d, 60 A.D.3d
119 (3d Dep’t), rev’d, 13 N.Y.3d 120 (2009). See BPCA Br. at 23-24.
No appellate court ever reviewed the trial court’s determination
there that a charter school could raise a constitutional challenge to
state legislation.6 And there are significant differences between
charter schools and public authorities that render the trial court’s
reasoning inapposite here in any event. In particular, unlike a
public authority, a charter school has an independent board of
trustees, see Education Law §§ 2851(2)(c), 2853(1), and takes the
form of an education corporation, not a public corporation, see
General Construction Law § 66(1), (4), (6); Education Law §§ 216-a(1),
2853(1). Furthermore, a charter school can be formed only on
application “submitted by one or more individuals who are teachers,
parents, school administrators or community residents,” and upon
approval this “founding group”—which consists of private
individuals—is permitted “to implement the proposal and operate
6 See 13 N.Y.3d at 130; 60 A.D.3d at 121.
20
the school effectively.”7 These characteristics distinguish charter
schools from public authorities, which—like municipalities and
district corporations—have no private directors or trustees and are
formed by affirmative act of the Legislature to achieve the particular
purposes specified by the Legislature.
3. In any event, a particularized inquiry
would compel the conclusion that
BPCA may not raise its constitutional
challenge here.
Even if a particularized inquiry were appropriate, it too would
demonstrate that BPCA may not raise its constitutional challenge.
BPCA claims that it should be treated as a private entity because
the tort claims affected by Jimmy Nolan’s Law were asserted
against it in its capacity as a landlord. BPCA Br. at 28. But BPCA’s
role in owning and managing property in lower Manhattan is itself
a public governmental function, not one that serves private ends.
7 See N.Y. State Educ. Dep’t, Charter School Office, Starting
a Charter School, http://www.p12.nysed.gov/psc/startcharter/home.
html; see also Education Law § 2851(1); id. § 2852(2), (9-a).
21
See Public Authorities Law §§ 1971, 1981(1); see also N.Y. Const.
art. XVIII, § 1.
Moreover, BPCA is wrong to argue that Jimmy Nolan’s Law
“has nothing to do with BPCA’s governmental powers and functions.”
BPCA Br. at 22. To the contrary, the sole purpose of Jimmy Nolan’s
Law is to remove a litigation defense that BPCA was able to assert
exclusively because of its status as a governmental entity. Indeed,
one of the driving purposes of Jimmy Nolan’s Law was to place
claims by injured post-9/11 cleanup workers against public entities
on the same footing as parallel claims against private entities,
which are not subject to a notice-of-claim requirement. See Br. for
Appellant the State of New York (State Br.) at 16-17. BPCA’s
insistence that it should be treated as a private entity thus reinforces
that it should be subject to Jimmy Nolan’s Law, not exempt from it.
22
C. BPCA Does Not Qualify for Any Exception
Allowing It to Challenge State Laws Despite
Its Status as a Public Authority.
BPCA alternatively attempts to rely on the exception that
purportedly allows municipalities to challenge state statutes that
will deprive them of a proprietary interest in a specific fund of
money. BPCA Br. at 34-36. But BPCA’s arguments are unavailing.
If such an exception exists, this Court has counseled that it must
be kept “narrow,” lest it “ultimately swallow up the general rule
barring suit against the State by local governments.” City of New
York v. State of New York, 86 N.Y.2d 286, 295 (1995).
The exception urged by BPCA, however, is not narrow. BPCA
asserts that it has standing because Jimmy Nolan’s Law removes a
defense to tort claims that it will have to defend, and ultimately
may have to pay, in the event plaintiffs’ claims are successful.
BPCA’s argument thus boils down to the notion that any legislation
affecting a public corporation’s finances will trigger the exception.
But this Court’s decisions have never accepted such a broad view of
this exception. The sum of money in which BPCA asserts a
proprietary interest is its general fund. But Jimmy Nolan’s Law
23
does not invade that fund—or inhibit BPCA’s rights to collect the
revenues that make up that fund. It simply removes one defense to
potential tort liability that is based on New York’s common law and
worksite-safety statutes—not Jimmy Nolan’s Law—and that can be
imposed only if plaintiffs are eventually able to prevail on their
claims. Allowing public corporations to invoke the “narrow proprietary
interest” exception based on such indirect effects on their finances
would easily “swallow up the general rule,” contrary to this Court’s
admonition in City of New York, id.
Nor is BPCA’s view supported by the authorities that it cites.
Both of the decisions that BPCA discusses—County of Rensselaer v.
Regan, 80 N.Y.2d 988 (1992), and Purcell v. Regan, 126 A.D.2d 849
(3d Dep’t 1987)—involved measures taken by the State to directly
divert revenues that were specifically dedicated to the complaining
counties by prior legislation. See County of Rensselaer, 80 N.Y.2d at
990-91 (state law rerouted fixed percentage of local court fines in
DWI cases from specially created county fund to general budgetary
use); Purcell, 126 A.D.2d at 850 (challenging Comptroller’s withholding
of sums expressly appropriated to county for public assistance).
24
Here, no branch of state government is attempting to directly
retract or repurpose any money statutorily due to BPCA. BPCA
thus lacks “a cognizable right in a specific fund” relevant to this
lawsuit. City of New York, 86 N.Y.2d at 295 (1995); see also Aristy-
Farer v. State of New York, 143 A.D.3d 101, 110-11 (1st Dep’t 2016)
(statutory school-aid formula did not create proprietary interest in
unappropriated sums), modified on other grounds, 29 N.Y.3d 501
(2017); Matter of Board of Educ. of Roosevelt Union Free School
Dist. v. Board of Trustees of State Univ. of N.Y., 282 A.D.2d 166, 173
(3d Dep’t 2001) (same).8
8 As the Connecticut Supreme Court explained in rejecting a
city’s challenge to a claim-revival statute comparable to Jimmy
Nolan’s Law, municipalities are “liable to have any . . . rights or
duties modified or abolished” by the State, and they are “not to be
regarded as thereby being deprived of any vested rights.” Sanger v.
City of Bridgeport, 124 Conn. 183, 188 (1938).
25
POINT II
JIMMY NOLAN’S LAW SATISFIES THE REQUIREMENTS
OF DUE PROCESS
A. The Applicable Standard Is Reasonableness,
in Light of BPCA’s Status as a Public
Authority.
The State showed in its opening brief (at 52-57) that
reasonableness is the governing standard for assessing the
constitutionality of Jimmy Nolan’s Law, which affects public
corporations only, and that reasonableness may be satisfied by
showing that a statute satisfies a moral obligation.
BPCA contends in response that McCann and Gallewski v. H.
Hentz & Co., 301 N.Y. 164 (1950), applied a more stringent “serious
injustice” standard to statutes reviving claims against public (as
well as private) entities (BPCA Br. at 42-43), but that response
misses the mark. As previously explained (see supra at 15-16),
McCann involved a statute that revived claims against private as
well as public entities, the challengers were a private challenger as
well as a state worker’s compensation fund, and the fund’s status
as a public entity was not put in issue. In Gallewski, the only affected
parties and challengers were private, as BPCA itself notes. BPCA
26
Br. at 43. Accordingly, in both cases the Court considered only the
question of what standard applies to a challenge brought by a
private entity, and did not determine what standard would apply to
a challenge brought by a public entity.
BPCA argues that cases applying a “moral obligation” test to
assess the reasonableness of a claim-revival statute are inapposite
here because those cases purportedly involved statutes reviving
claims against the State or a municipality only. Id. at 44-46. But
BPCA is mistaken. Claim-revival decisions involving private
defendants have used “moral obligation” language. See McCann,
282 A.D. at 450 (noting presence of “a strong moral obligation to”
revive time-barred claim (quotation marks omitted)); Gallewski v.
H. Hentz & Co., 276 A.D. 219, 222 (1st Dep’t 1949) (same), aff’d, 301
N.Y. 164 (1950). These cases dispose of BPCA’s assertion that the
moral obligation standard for reasonableness does not apply here.
27
B. BPCA Fails to Show That Jimmy Nolan’s Law
Is Unconstitutional No Matter What Standard
Is Applied.
There is no merit to BPCA’s arguments that Jimmy Nolan’s
Law fails to satisfy due process. Indeed, Jimmy Nolan’s Law satisfies
the Constitution under any standard—whether due process is
thought to require (i) a “reasonable” response to a situation that
“reasonably calls for remedy,” Robinson v. Robins Dry Dock Repair
Co., 238 N.Y. 271, 279-80 (1924), such as where a statute satisfies
a “moral obligation,” Ruotolo v. State of New York, 83 N.Y.2d 248,
253 (1994); or (ii) a “serious injustice” and “circumstances [that] are
exceptional,” Gallewski, 301 N.Y. at 174.
1. Jimmy Nolan’s Law was a reasonable
response to a situation that reasonably
called for a remedy.
The State’s opening brief demonstrated that Jimmy Nolan’s
Law easily meets the governing due process standard by providing
a reasonable response to a situation reasonably calling for remedy.
See State Br. at 57-62. As the State explained, that standard is met
where a statute satisfies a moral obligation, which Jimmy Nolan’s
Law did by removing an impediment to recovery by workers injured
28
in their selfless and exceptional efforts to help lower Manhattan
recover from a uniquely devastating terrorist attack. Id. at 16-17,
58-59. In addition, the statute remedied the unfairness those
workers faced in having their claims barred, in light of the
slow-developing nature of their diseases and the false assurances of
workplace safety they received, which could easily prevent them
from connecting their symptoms to their post-9/11 clean-up work
within the ninety-day period they had to serve a notice of claim. Id.
at 57, 59-61. And because BPCA was already on notice of its
potential liability, the statute did not unfairly prejudice BPCA by
impeding its ability to make a timely investigation or by reviving
stale claims years after the fact without giving BPCA a chance to
preserve evidence. Id. at 61-62.
BPCA’s responses are unavailing. First, BPCA asserts that
Jimmy Nolan’s Law did not satisfy a moral obligation because such
an obligation requires it to have been at fault in causing plaintiffs’
injuries. BPCA Br. at 46-48. But no such finding of fault is required
under “[t]he moral obligation analysis,” which “involves a case-by-
case examination.” Ruotolo, 83 N.Y.2d at 259. For example, a moral
29
obligation can stem from “benefits conferred by private persons
upon the state which the state has continued to enjoy without the
return of a quid pro quo.” Farrington v. State of New York, 248 N.Y.
112, 116 (1928). That understanding of a moral obligation supports
the reasonableness of Jimmy Nolan’s Law. The efforts of post-9/11
cleanup workers (like the plaintiffs in these appeals) allowed BPCA’s
property to remain inhabitable and to return to normal operations,
thus enabling BPCA’s continued collection of revenue generated by
those properties. There is nothing inequitable about a statute that
may require BPCA in turn to contribute to the relief of the workers
who rehabilitated its properties.
Second, BPCA asserts that Jimmy Nolan’s Law was not a
reasonable response to a situation that reasonably called for
remedy because, in essence, any worker who failed to assert a claim
under the preexisting regime was dilatory or otherwise at fault.
BPCA Br. at 48-58. But BPCA is wrong. There is no merit to BPCA’s
assertion that no remedy was required here because the discovery
limitations rule in C.P.L.R. 214-c fully protected the interests of the
injured workers here. See BPCA Br. at 50-54. Under that provision,
30
the limitations period in toxic tort cases—as well as the period for
filing a notice of claim—begins “on the date of discovery of the
injury.” C.P.L.R. 214-c(3). The Legislature was aware of C.P.L.R.
214-c when enacting Jimmy Nolan’s Law. See Sponsor’s Mem.,
reprinted in Bill Jacket for ch. 440 (2009), at 6-7 (copy included in
addendum to State Br.). But it justifiably concluded that the
existing discovery-accrual rule did not prevent all injustice in these
circumstances.
Specifically, the limitations period under C.P.L.R. 214-c
begins to run once a plaintiff experiences symptoms, even if he does
not appreciate the cause of his symptoms. See Matter of New York
County DES Litig., 89 N.Y.2d 506, 514–15 (1997). Jimmy Nolan’s
Law thus provided additional relief beyond C.P.L.R. 214-c for
workers who “did not immediately recognize the causal connection
between” their illnesses and working conditions. Sponsor’s Mem.,
reprinted in Bill Jacket for ch. 440, supra, at 6. Contrary to BPCA’s
assertion (BPCA Br. at 54), C.P.L.R. 214-c(4) was of little help to
these individuals. That provision affords extra time to bring a claim
only if the “technical, scientific or medical knowledge” required to
31
show causation did not previously exist. But the problem for many
plaintiffs here was linking their seemingly mundane maladies to
their work clearing exceptionally toxic dust.
And, even if “some plaintiffs” could have made this factual
connection, the Legislature validly decided “that it would be more
fair for all plaintiffs to uniformly now have one year to bring their
actions,” Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 515 (1989).
Likewise, contrary to BPCA’s arguments (BPCA Br. at 54-56), it
was well within the Legislature’s discretion to determine that all
injured workers should have their claims revived for one year, as
opposed to requiring workers to go through an uncertain judicial-
waiver process where the prospect of inconsistent outcomes was
significant and relief was far from certain.
Finally, BPCA argues that the Legislature was not justified
in taking account of injured workers’ unawareness of the ninety-
day notice-of-claim requirement that existed prior to the enactment
of Jimmy Nolan’s Law. BPCA Br. at 58-59. But contrary to BPCA’s
argument, the application of that requirement to plaintiffs’ claims
was the result of an unexpected legal development. See Robinson,
32
238 N.Y. at 275-76 (upholding reopening of claims that had been
unexpectedly invalidated by intervening federal-court decisions).
As noted in the State’s opening brief (at 11-12), Congress vested the
Manhattan federal district court with “exclusive jurisdiction” over
any claim for damages arising out of the September 11, 2001
hijackings. Air Transportation Safety and System Stabilization Act,
Pub L. 107-41, § 408(b)(3), 115 Stat. 230 (2001), codified at 49
U.S.C. § 40101 note. It was by no means clear that in creating this
new “Federal cause of action”—which was to be governed by state
“substantive” law except where preempted by federal law—
Congress meant to incorporate state notice-of-claim requirements,
id. § 408(b)(1)-(2).
In fact, federal law generally provided that a “court may not
decline to hear an otherwise properly presented federal claim
because that claim would be barred under a state law requiring
timely filing of notice.” Felder v. Casey, 487 U.S. 131, 152 (1988)
(emphasis added); see Hardy v. New York City Health & Hosps.
Corp., 164 F.3d 789, 793 (2d Cir. 1999). The federal district court
nevertheless decided to import New York’s notice-of-claim requirement
33
into plaintiffs’ causes of action. (See A. 356-359.) New York’s Legislature
accordingly was within its power to remedy the mass dismissals caused
by this “unforeseen result.” Robinson, 238 N.Y. at 280.
2. Jimmy Nolan’s Law was justified by
a serious injustice and exceptional
circumstances.
Although nothing more than a showing of reasonableness is
required to sustain Jimmy Nolan’s Law, the statute would pass
muster even under the more stringent standard that BPCA
mistakenly invokes. See BPCA Br. at 36-42. The circumstances
presented here are at least as compelling as those in McCann,
which expressly applied Gallewski’s standard of “serious injustice”
and “circumstances [that] are exceptional” and concluded that there
could be “no doubt” of the challenged legislation’s validity “[a]pplying
this test.” 282 A.D. at 449-50 (quotation marks omitted).
McCann involved two revival statutes for the benefit of
workers suffering from the “slow-starting” diseases caused by
compressed air. Id. at 446. The Legislature recognized that many
workers would begin experiencing symptoms without being aware
of their source. Id. at 447. Thus, despite an initial statute giving
34
such workers the benefit of a symptom-discovery rule (analogous to
C.P.L.R. 213-c), the Legislature extended the statute of limitations
to permit them to file claims after linking “the disease from which
[they] suffered” to “the nature of [their] employment.” Id. (quotation
marks omitted). The court held this situation to present “a classic”
example of a permissible revival statute. Id. at 450.
The same is true of Jimmy Nolan’s Law. Indeed, the
circumstances here are even more compelling. As the Legislature
found, many post-9/11 cleanup workers were misinformed that their
worksites were safe—false representations that impeded their ability
to connect their illnesses to their post-9/11 cleanup work. This further
impediment to workers’ ability to file claims reinforces the seriousness
of the injustice that the Legislature appropriately addressed.
Other “exceptional circumstances” support the constitutionality of
Jimmy Nolan’s Law as well. Plaintiffs here responded to an
unprecedented catastrophe caused by the destruction of the Twin
Towers on September 11, 2001. And the risks to which they exposed
themselves in removing the massive plume of toxic debris the towers
left behind were not, as BPCA argues (BPCA Br. at 53), merely the same
35
risks presented by their other work as licensed asbestos handlers. In
fact, the gravamen of plaintiffs’ claims is that the “singular focus” on
“asbestos-abatement” by those responsible for supervising post-9/11
cleanup work is what led to the implementation of safety measures and
practices inappropriate for the distinct risks posed by the work plaintiffs
were doing. See In re World Trade Ctr. Lower Manhattan Disaster Site
Litig., 44 F. Supp. 3d 409, 417-18 (S.D.N.Y. 2014).
Finally, the State has a compelling interest in reassuring all
those injured in aiding New York’s recovery from disasters like 9/11
that, whatever the source of their injuries, it will support their
efforts to seek compensation from those whose properties they
rehabilitated. Like many other measures the Legislature has
adopted for the benefit of injured post-9/11 cleanup workers, Jimmy
Nolan’s Law sends a “simple”—and important—message from the
State: “we will always have your back.”9
9 Governor Andrew M. Cuomo, Governor Cuomo Signs
Legislation Expanding Unlimited Sick Leave Benefit for New
Yorkers Who Participated in 9/11 Response Efforts (Sept. 11, 2017),
https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-
expanding-unlimited-sick-leave-benefit-new-yorkers-who.
36
CONCLUSION
This Court should answer the certified questions as follows:
1. New York’s capacity-to-sue doctrine does not rely on a
“particularized inquiry” to determine whether a State-
created public benefit corporation has the capacity to
challenge a state statute; instead, a public benefit corporation
does not have such capacity unless one of the narrow
exceptions applicable to all other public corporations applies.
2. A statute reviving claims against a public entity or public
benefit corporation must satisfy a “reasonableness” standard
in order to satisfy the Due Process Clause of the New York
Constitution.
Dated: New York, NY
September 28, 2017
BARBARA D. UNDERWOOD
Solicitor General
STEVEN C. WU
Deputy Solicitor General
ANDREW W. AMEND
Senior Assistant Solicitor General
ERIC DEL POZO
Assistant Solicitor General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General
State of New York
Attorney for Appellant
By: ________________________
ANDREW W. AMEND
Senior Assistant Solicitor
General
120 Broadway
New York, NY 10271
(212) 416-8022
Reproduced on Recycled Paper
AFFIRMATION OF COMPLIANCE
Pursuant to the Rules of Practice of the New York Court of Appeals (22
N.Y.C.R.R.) § 500.13(c)(1), Andrew W. Amend, an attorney in the Office of the
Attorney General of the State of New York, hereby affirms that according to
the word count feature of the word processing program used to prepare this
brief, the brief contains 6,547 words, which complies with the limitations
stated in § 500.13(c)(1).
______________________________
Andrew W. Amend
Addendum
TABLE OF CONTENTS
PAGE
i
Jones Beach State Parkway Authority Act, codified at
Ch. 43-A, §§ 150-165, Cons. N.Y. Laws (1953) .......................................... ADD 1
ADD 1
163
Exhibit A — Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
%
JONES BEACH STATE PARKWAY AUTHORITY ACT
Title 3 of Article 2 of the Public Authorities Law
Chapter 43-A of the Consolidated Laws of the
State of New York
*
f
(As amended to December 31, 1953)
Sec.
150. Short title.
151. Definitions.
152. Jones Beach State Parkway Authority.
153. Powers of the authority.
153-a. Additional powers of the authority.
153-b. Further additional powers of the authority.
154. Towns of Hempstead, Babylon and Islip may convey land.
155. Title to additional lands acquired.
156. Moneys of the authority.
157. Bonds of the authority.
158. Competing highways not to be authorized.
158-a. Covenants of the state.
158-b. Acquisition of real property.
158-c. Relocation of dwellings.
159. State not liable on bonds.
160. Bonds legal investments for public officers and fiduciaries.
161. Bonds to be tax exempt.
161-a. Tax contract by the state.
162. Remedies of bondholders.
163. Rules and regulations of the commission.
164. Title not affected if in part unconstitutional or ineffective.
165. Inconsistent provisions in other acts superseded.
The foregoing table shows present section titles.
§150. Short title
This title may be cited as the “Jones Beach State Parkway
Authority Act.”
§151. Definitions
As used or referred to in this title, unless a different meaning
clearly appears from the context,
1. The term “authority” shall mean the corporation created by
section one hundred fifty-two of this chapter ;
2. The term “commission” shall mean the Long Island state park
commission;
ADD 2
I
164
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
2
3. The term “Meadowbrook parkway” shall mean a parkway
now proposed between Meadowbrook state park and Jones Beach statepark;
4. The term ‘‘Loop parkway’’ shall mean a parkway now proposed
connecting Meadowbrook parkway and Hempstead town park on Long
Beachr
5. The term ‘‘Wantagh parkway’’ shall mean the present parkway
connecting Wantagh state park and Jones Beach state park;
6. The term “Jones Beach parkway” shall mean collectively
Meadowbrook parkway, Loop parkway, Wantagh parkway and the
roads, structures, facilities and bridges incidental thereto;
7. The term “bonds” shall mean bonds issued by the authority
pursuant to this title;
8. The term “board” shall mean the members of the authority;
9. The term “comptroller” shall mean the comptroller of the state
of New York;
10. The term ‘‘Captree bridge’’ shall mean a bridge now proposed
from the mainland of Long Island across Great South bay to Captree
state park on Jones Beach island east of the most easterly point of
Oak island, and shall include a parkway connection between the said
bridge and the parkway on Jones Beach island;
11. The term “Captree parkway” shall mean a parkway on the
mainland of Long Island north of Captree bridge to connect Captree
bridge with highways and other state parkways ;
12. The term “revenues” shall mean the moneys received or to he
received from tolls, rentals or other charges.
As amended L. 1939, c. 891, % 1, eff. June 16, 1939.
'
§ 152. Jones Beach State Parkway Authority
A board, to be known as “Jones Beach State Parkway Authority,”
is hereby created. Such board shall be a body corporate and politic
constituting a public benefit corporation. It shall consist of the com¬
missioners of the Long Island state park commission and their suc¬
cessors. In case such commission shall cease to exist the board shall
consist of three members who shall be appointed by the governor, by
ADD 3
165
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
3
and with the consent of the senate; the term of office of the members
so appointed shall be two, four and six years, respectively, and there¬
after the terms of office of the said members so appointed shall be six
years. The president of the board shall be the president of the Long
Island state park commission or if such commission shall cease to exist
shall he appointed by the governor. The members of the board shall
be entitled to no compensation for their services, but shall be entitled
to reimbursement for all expenses incurred or to be incurred in con¬
nection with the Jones Beach parkway. The power of such corporation
shall be vested in and exercised by a majority of the members of the
board then in office. The board may delegate to one or more of its
members, or to its agents and employees, such powers and duties as
it may deem proper. The board and its corporate existence shall con-
.tinue only for a period of five years and thereafter until all its
liabilities have been met and its bonds have been paid in full or such
liabilities or bonds have otherwise been discharged. Upon its ceasing
to exist all its rights and properties shall pass to the state and become
subject to the jurisdiction of the commission.
§ 153. Powers of the authority
The authority shall have power
1. To sue and he sued;
2. To have a seal and alter the same at pleasure;
3. To acquire, hold and dispose of personal property for its cor¬
porate purposes;
4. To make by-laws for the management and regulation of its
affairs ;
5. With the consent of the commission to use the agents, em¬
ployees and facilities of the commission and to authorize the making
of improvements by the commission when funds are available therefor
and funds of the authority are insufficient for such purposes;
6. To appoint officers, agents and employees and fix their com¬
pensation; subject, however, to the provisions of the civil sendee law,
which shall apply to the authority as a municipal corporation other
than a city;
I
ADD 4
I
166
Exhibit A — Copy of the Resolution and of the Jones BeachState Parkway Authority Act annexed to Complaint.
4
7. To make contracts, and to execute all instruments
or convenient; necessary
8. By contract, or contracts, or by its own employees, but as asingle enterprise, to construct the Meadowbrook parkway, the Loon
parkway and to reconstruct the Wantagh parkway on lands acquired
or to be acquired by the state of New York, together with incidentalroads, structures, facilities and bridges, subject to such consents and
approval of federal authorities in any case as may be necessary;
9. To maintain, reconstruct, and operate the Jones Beach park¬
way;
10. To charge tolls for the use of Jones Beach parkway subject
to and in accordance with such agreements with bondholders as may be
made as hereinafter provided; provided, however, that no tolls may
be charged on Wantagh parkway until after the first day of January,
nineteen hundred thirty-five;
11. To construct and maintain over, under, along or across Jones
Beach parkway, telephone, telegraph or electric wires and cables, gas
mains, water mains, and other mechanical equipment not inconsistent
with parkway purposes, to contract for such construction and to lease
the right to construct and/or use the same on such terms and for such
consideration as it shall determine, provided, however, that no lease
shall be made for a period of more than ten years from the date when
it is made;
12. To construct and maintain facilities for the public, not incon¬
sistent with the use of Jones Beach parkway as a parkway, to contract
for such construction, and to lease the right to construct and/or use
such facilities on such terms and for such considerations as it shall
determine, provided, however, that no lease shall be made for a period
of more than ten years from the date when it is made;
13. To issue negotiable bonds and to provide for the rights of the
holders thereof;
14. To enter on any lands, waters and premises for the purpoet
of making surveys, soundings and examinations;
out the15. To do all things necessary or convenient to carry
powers expressly given in this title.
As amended L. 1946, c. 119, eff. March 14, 1946.
1
ADD 5
167r Exhibit A — Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
5
§153-a. Additional powers of the authority
The authority shall in addition have power: 1. By contract or
contracts or by its own employees to construct, on lands of the state,
Captree bridge subject to such consents and approval of federal author¬
ities as may be necessary.
2. In the discretion of the board, but only if and as permitted in
any agreement with bondholders, by contract or contracts or by its
own
ments along Captree parkway and Captree bridge and on Jones Beach
island as it shall deem desirable for park and parkway purposes, includ¬
ing but not limited to automobile parking places, bathhouses, swimming
pools, restaurants, boat basins, docks and slips and other recreational
facilities.
3. To maintain, reconstruct and operate Captree bridge and, but
only if and as permitted in any agreement with bondholders, to main¬
tain, reconstruct and operate Captree parkway and such park and
parkway improvements as it shall construct along Captree parkway
and on Jones Beach island.
4. Subject to and in accordance with any agreements with bond¬
holders, to charge tolls for the use of Captree bridge and to charge
rentals and make other charges for the use of any parkway or improve¬
ment operated by it.
5. To construct and maintain over, under, along or across Captree
bridge and, if constructed by the parkway authority, over, under, along
or across Captree parkway, telephone, telegraph or electric wires and
cables, gas mains, water mains, and other mechanical equipment not
inconsistent with park or parkway purposes; to contract for such
construction and to lease the right to construct and/or use the same on
Buch terms and for such consideration as it shall determine, provided,
however, that no lease shall be made for a period of more than ten
years from the date when it is made.
6. To construct and maintain facilities for the public on and along
Captree bridge and if constructed by it, on and along Captree parkway
(not inconsistent with the use of Captree bridge as a bridge and Captree
parkway as a parkway), to contract for such construction, and to lease
the right to construct and/or use such facilities on such terms and for
employees to construct (a) Captree parkway; (b) such improve-
ADD 6
f
168
Exhibit A — Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint;
*
6
such consideration as it shall determine, provided, however, that no
lease shall be made for a period of more than ten years from the date
when it is made.
7. To do all things necessary or convenient to enforce its rights
and to carry out its purposes, duties and the powers expressly given
in this or any other section of this title.
As added L. 1939, c. 891, § 2, eff. June 16, 1939.
§ 153-b. Further additional powers of the authority
The authority shall have the power, in addition to the powers
granted in other sections of this title:
1. To construct an extension of Meadowbrook state parkway from
the Southern state parkway to the Northern state parkway with inci¬
dental roads, structures, facilities and bridges and to maintain, recon¬
struct and operate such extension ;
2. To reconstruct, widen and otherwise improve and thereafter
maintain, reconstruct and operate (a) Southern state parkway, together
with incidental parkway facilities now existing or hereafter constructed*
on and along said parkway, from and including a connection with the
Belt parkway to Wantagh avenue and to acquire real property and
rights therein for future widening of Southern state parkway between
Wantagh avenue and the easterly boundary of Nassau county, (b)
Meadowbrook state parkway from Merrick road to the Southern state
parkway, and (c) Wantagh state parkway from Merrick road to the
Southern state parkway;
3. To construct, reconstruct, improve and thereafter maintain and
operate facilities such as gasoline, comfort, repair and storage stations
and other similar facilities along the route of the extension of Meadow¬
brook state parkway referred to in paragraph one of this section and
the parts of the parkways referred to in paragraph two of this section,
to contract for.such construction, and to lease the right to construct
aud use such facilities on such terms and for such consideration as it
shall determine, provided, however, that no lease be made for a period
of more than ten years from the date when it is made;
4. To construct and maintain over, under, alongor across the exten¬
sion of Meadowbrook state parkway referred to in paragraph one of this
ADD 7
r Exhibit A- Copy of the Resolution and of the Jones BeachState Parkway Authority Act annexed to Complaint.7
section and the parts of the parkways referred to in paragraph two of
this section, telephone, telegraph or electric wires and cables, gas mains,
water mains, and other mechanical equipment not inconsistent with
park or parkway purposes; to contract for such construction and to
lease the right to construct and/or use the same on such terms and for
such consideration as it shall determine, provided, however, that no lease
shall be made for a period of more than ten years from the date when it
is made;
5. To charge tolls for the use of the part of Southern state parkway
improved by the authority subject to and in accordance with any agree¬
ments with bondholders made as hereinafter provided. The toll shall
be ten cents unless the revenues from such tolls and the income from the
facilities authorized by the foregoing provisions of this section are insuf¬
ficient to meet all obligations of such agreements and to pay the costs of
operating and maintaining the parkways and facilities operated and
maintained by the authority pursuant to the foregoing provisions of this
section. The revenue from such tolls and the income from such facilities
shall be used only to meet such obligations and to pay the cost of con¬
structing, reconstructing, operating and maintaining such parkways and
facilities ;
6. To pledge the tolls from the Southern state parkway and any
other revenues from the parkways operated and maintained by the
authority pursuant to this section ;
7. From time to time to issue bonds in the aggregate principal
amount of forty million dollars for any or all of the following purposes
and purposes incidental thereto: (a) purposes authorized by section
one hundred fifty-three-b ; (b) reconstructing, widening and otherwise
improving Meadowbrook parkway from Merrick road to Jones Beach
state park, Wantagli parkway from Merrick road to Jones Beach state
park and Loop parkway; (c) constructing additional parking facilities
on Jones Beach at a total cost of not exceeding one million two hundred
fifty thousand dollars; and (d) the payment of all costs and expenses
incidental to the issuance of such bonds, including interest during con¬
struction. Such bonds shall mature not later than forty years from
January first, nineteen hundred fifty-four, and the authority shall not
have power to refund the issuance of such bonds. The authority shall
have power to employ financial advisors in connection with the issuance
of such bonds. No revenues or moneys of the authority, other than the
i
ADD 8
1
170
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
8
tolls and other revenues from the Southern state parkway and the pro¬
ceeds from the sale of the bonds, shall be pledged for or shall be applica¬
ble to the payment of such bonds. All the provisions of this title relat¬
ing to bonds which are not inconsistent with the provisions of this
section, shall apply to the bonds authorized by this section except section
one hundred fifty-eight and subdivisions two and three of section one
hundred fifty-eight-a. The authority also shall have power from time
to time in anticipation of the issuance of bonds pursuant to this section
to borrow money on bank loans and to evidence such loans by notes or
otherwise. Such loans and notes shall be subject to the same provisions
of this title as relates to bonds issued pursuant to this section;
8. Bonds issued pursuant to this section shall be sold at public sale,
upon sealed bids publicly opened and read, to the bidder who shall offer
the lowest interest cost to the authority, or if the authority shall so
determine, at the highest price. The notice of sale shall be published at
least once, not less than seven nor more than thirty days before the
date of sale, in a financial newspaper published and circulated in the city
of New York. Such notice shall contain a statement of the time and
place where all bids received in pursuance of such notice will he publicly
opened and read. Such bonds shall be sold for a price not less than
ninety-eight per centum of the par value thereof, plus accrued interest.
The provisions of this subdivision shall not apply to notes of the author¬
ity issued pursuant to subdivision seven of this section ;
9. Notwithstanding and in addition to any provisions for the re¬
demption of bonds issued pursuant to this section which may be con¬
tained in any contract with the holders of such bonds, the state of New
York may, upon furnishing sufficient funds therefor, require the
authority to redeem, prior to maturity, as a whole, any issue of such
bonds on any interest payment date not less than five years after the
date of the bonds of such issue at one hundred five per centum of their
face value and accrued interest or at such lower redemption price as
may he provided in the bonds in case of the redemption thereof as a
whole on the redemption date. Notice of such redemption shall be pub¬
lished at least twice in at least two newspapers published and circulated
respectively in the county of Nassau and city of New York, the first
publication to be at least thirty days before the date of redemption;
10. The authority shall have the right to possess and use for its
corporate purposes the extension of Meadowbrook state parkway re-
ADD 9
171
Exhibit A — Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
9
ferred to in paragraph one ol' this section and the parts of the parkways
referred to in paragraph two of this section, together with necessary
facilities now existing or hereafter constructed on or along said park¬
ways. Policing of the parkways and other facilities of the authority
shall continue to be the responsibility of the force of park patrolmen
under the direction of the commission. Such possession and use by the
authority shall continue until its liabilities for such parkways and
facilities have been met and the bonds authorized by this section have
been paid in full or such liabilities having otherwise been discharged.
Thereafter such parkways and facilities shall pass to the state and be¬
come subject to the jurisdiction of the commission ;
11. All contracts involving payments of more than five thousand
dollars, except for professional or financial advisory services or in con¬
nection with the issuance of bonds or notes, shall be let to the lowest
responsible bidder by sealed proposals publicly opened after public
notice published at least once in the official newspapers of Nassau
county, at least ten days prior to the day on sealed proposals
to be opened ; provided, however, the authorityroay reject any and all
proposals and may advertise for new proposals as above provided if
in its opinion the best interests of the authority will thereby be pro¬
moted.
are
As added L. 1953, c. 114, § 2, eff. March 17, 1953.
§ 154. Towns of Hempstead, Babylon and Islip may convey land
Notwithstanding the provisions of any other law, the town boards
of the towns of Hempstead, Babylon and Islip without the submission
of a proposition to the people of the towns and without town meetings
or any other authorization are hereby authorized respectively to convey
to the state any land and lands under water owned by said towns, re¬
spectively, for the purposes of this title. Said town boards are au¬
thorized, respectively, to permit the temporary use of town lands which
may be convenient for construction undertaken by the authority and
to permit the use of fill dredged from town lands under water.
As amended L. 1939, c. 891, §3, eff. June 16, 1939.:
.
ADD 10
■
172
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
10
§ 155. Title to additional lands acquired
Title to any additional lands, easements or rights in land which
may be hereafter acquired for the purposes of this act shall be vested
in the state of New York.
As amended L. 1939, c. 891, §4, eff. June 16, 1939.
§ 156. Moneys of the authority
All moneys of the authority from whatever source derived shall
be paid to the comptroller as agent of the authority, who shall not com¬
mingle such moneys with any other moneys. Such moneys shall be
deposited in a separate bank account or accounts. The moneys in such
accounts shall be paid out on check of the comptroller on requisition
of the president of the authority or of such other person or persons as
the authority may authorize to make such requisitions. All deposits
of such moneys shall, if required by the comptroller or the authority,
be secured by obligations of the United States or of the state of New
York of a market value equal at all times to the amount of the deposit
and all banks and trust companies are authorized to give such security
for such deposits. The comptroller and his legally authorized represen¬
tatives are hereby authorized and empowered from time to time to
examine the accounts and books of the parkway authority, including
its receipts, disbursements, contracts, leases, sinking funds, investments
and any other matters relating to its financial standing. The authority
shall have power notwithstanding the provisions of this section, to
contract with the holders of any of its bonds as to the custody, collection,
securing, investment aud payment of any moneys of the authority, or
any moneys held in trust or otherwise for the payment of bonds or in
any way to secure bonds, and to carry out any such contract notwith¬
standing that such contract may be inconsistent with the previous
provisions of this section. Moneys held in trust or otherwise for the
payment of bonds or in any way to secure bonds and deposits of such
moneys may be secured in the same manner as moneys of the authority,
and all banks and trust companies are authorized to give such security
for such deposits.
As amended L. 1939, c. 891, §5, eff. June 16, 1939.
ADD 11
r
173
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
11
§157. Bonds of the authority
1. The authority shall have power and is hereby authorized from
time to time to issue its negotiable bonds in the aggregate principal
amount of not exceeding ten million, fifty thousand dollars outstanding
at any one time. The authority shall have power from time to time to
refund any bonds by the issuance of new bonds, whether the bonds to
be refunded have or have not matured, and may issue bonds partly to
refund bonds then outstanding and partly for any other corporate pur¬
poses. In computing the total amount of bonds of the authority which
may at any time be outstanding the amount of the outstanding bonds
to be refunded from the proceeds of the sale of new bonds or by ex¬
change for new bonds shall be excluded. Except as may otherwise be
' expressly provided by the authority, every issue of the bonds shall be
general obligations payable out of any moneys or revenues of the au¬
thority, subject only to any agreements with the holders of particular
bonds pledging any particular revenues. Whether or not the bonds are
of such form and character as to be negotiable instruments under the
terms of the negotiable instruments law (constituting chapter thirty-
eight of the consolidated laws) the bonds shall be and are hereby made
negotiable instruments within the meaning of and for all the purposes
of the negotiable instruments law, subject only to the provisions of the
bonds for registration.
2. Such bonds shall be authorized by resolution of the board and
shall bear such date or dates, mature at such time or times, not exceed¬
ing forty years from their respective dates, bear interest at such rate
or rates, not exceeding five per centum per annum payable semi¬
annually, be in such denominations, be in such form, either coupon or
registered, carry such registration privileges, be executed in such man¬
ner, be payable in such medium of payment, at such place or places,
and be subject to such terms of redemption, as such resolution or resolu¬
tions may provide. Such bonds may be sold at public or private sale for
such price or prices as the authority shall determine.
3. Such bonds may be issued for any corporate purpose of the
authority including payment of the cost of the acquisition of any addi¬
tional lands, easements or rights in land which may hereafter be ac¬
quired for Jones Beach parkway or Captree bridge or Captree parkway
or any other improvements that the authority is authorized to construct.
I
i
ADD 12
1
174
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
12
4. Any resolution or resolutions authorizing any bonds may con¬
tain provisions, which shall be a part of the agreement with the holders
of the bonds, as to (a) pledging the revenues of Jones Beach parkway
and Captree bridge and Captree parkway and any improvements
operated by the authority, or any part of such revenues to secure the
payment of the bonds or of any issue of the bonds ;
(b) the rates of the tolls and rentals to be charged and of other
charges to be made, and the amount to be raised in each year in revenues
of any kind and the use and disposition of the revenues;
(c) the setting aside of reserves or sinking funds, and the regula¬
tion and disposition thereof ;
(d) limitations on the right of the commission and of the authority
and their successors to restrict and regulate the use of Jones Beach
parkway, Captree bridge, Captree parkway, or any other improvement
in connection with which such bonds are issued ;
(e) limitations on the purposes to which the proceeds of the sale
of any issue of bonds then or thereafter to be issued may be applied
and pledging such proceeds to the payment of the bonds on such terms
and conditions as the resolution may provide ;
(f) limitations on the issuance of additional bonds; the terms
upon which additional bonds may be issued and secured ; the refunding
of outstanding or other bonds;
(g) the procedure, if any, by which the terms of any agreement
with bondholders may be amended or abrogated, the amount of bonds
the holders of which must consent thereto, and the manner in which such
consent may be given ;
(h) limitations on the amount of revenues derived from Jones
Beach parkway, Captree bridge, Captree parkway or any improvement
operated by the authority to be expended for operating, administrative
or other expenses of the authority ;
(i) vesting in a trustee or trustees such property, rights, po
and duties in trust as the authority may determine which may include
any or all of the rights, powers and duties of the trustee appointed by
the bondholders pursuant to section one hundred sixty-two hereof, and
limiting or abrogating the right of the bondholders to appoint a trustee
wers
ADD 13
175
Exhibit A — Copy of the Resolution and of the Jones BeachState Parkway Authority Act annexed to Complaint.
13
under section one hundred sixty-two hereof or limiting the rights,
duties and powers of such trustee;
(j) any other matters of like or different character which in any
way affect the security or protection of the bonds.
4-a. Any resolution or resolutions authorizing any bonds or any
issue of bonds maturing in not exceeding ten years from their date
(hereafter in this subsection four-a referred to as “short term obliga¬
tions”) may contain, in addition to all other provisions authorized
by this title, provisions, which shall be a part of the agreement with
the holders of the short term obligations thereby authorized, as to
(a) refunding the short term obligations by the issuance of bonds of
the authority either by the sale of bonds and the application of the
proceeds to the payment of the short' term obligations or by the ex¬
change of bonds for the short term obligations; provided, however, that
the authority shall make no covenant to refund which shall require it
to issue bonds, the aggregate principal amount of which shall exceed
by more than ten per centum the aggregate principal amount of the
short term obligations to be refunded thereby;
(b) satisfying, paying or discharging the short term obligations,
at the election of the authority, by the tender or delivery of bonds of
the authority in exchange therefor; provided, however, that the
aggregate principal amount of bonds shall not exceed by more than ten
per centum the aggregate principal amount of the short term obliga¬
tions to satisfy, pay or discharge which the bonds are tendered or
delivered ;
(c) exchanging or converting the short term obligations, at the
election of the holder thereof, for or into bonds of the authority ; pro¬
vided, however, that the aggregate principal amount of the bonds shall
not exceed by more than ten per centum the aggregate principal amount
of the short term obligations to be exchanged for or converted into
bonds;
I
(d) pledging bonds of the authority as collateral to secure pay¬
ment of the short term obligations and providing for the terms and
conditions of the pledge and manner of enforcing the pledge, which
terms and conditions may provide for the delivery of the bonds in
satisfaction of the short term obligations; provided, however, that
ADD 14
176
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
14
the aggregate principal amount of the bonds pledged shall not exceed
by more than ten per centum the aggregate principal amount of the
short term obligations to secure which they are pledged;
(e) depositing bonds in escrow or in trust with a trustee or fiscal
agent or otherwise providing for the issuance and disposition of the
bonds as security for carrying out any provisions in any resolution
adopted pursuant to the foregoing paragraphs (a), (b), (c) and (d)
hereof and providing for the powers and duties of the trustee or fiscal
agent or other depositary and the terms and conditions on which the
bonds are to be issued, held and disposed of ;
(f) any other matters of like or different character which relate
to any provision or provisions of any resolution adopted pursuant to
the foregoing paragraphs (a), (b), (c), (d) and (e) hereof.
In computing the amount of bonds of the authority which may be
outstanding at any one time, short term obligations shall be excluded
to the extent that the resolution authorizing the issuance of such short
term obligations shall provide for the issuance of bonds pursuant to
paragraphs (a), (b), (c) or (d) of this subsection, but the bonds pro¬
vided to be issued by such resolution shall be included in making such
computation whether or not such bonds are outstanding.
The authority shall have power to make contracts for the future
sale from time to time of short term obligations, by which the pur¬
chasers shall be committed to purchase short term obligations from
time to time on the terms and conditions stated in such contracts, and
the authority shall have power to pay such consideration as it shall
deem proper for such commitments.
5. It is the intention hereof that any pledge of revenues or other
moneys made by the authority shall be valid and binding from the
time when the pledge is made; that revenues or other moneys so
pledged and thereafter received by the authority shall immediately
be subject to the lien of such pledge without any physical delivery
thereof or further act, and that the lien of any such pledge shall be
valid and binding as against all parties having claims of any kind in
tort, contract or otherwise against the authority, irrespective of whether
such parties have notice thereof. Neither the resolution nor any other
instrument by which a pledge is created need be recorded.
I I
ADD 15
177
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
15
6. Neither the members of the board nor any person executing
the bonds shall be liable personally on the bonds or be subject to any
personal liability or accountability by reason of the issuance thereof.
7. For the purpose of refunding or reducing its debt the authority
shall have power out of any funds available therefor to purchase any
bonds issued by it at a price not more than one hundred and five per
centum of the principal amount thereof and accrued interest. The
authority may hold, cancel or resell such bonds, subject to and in ac¬
cordance with agreements with bondholders.
As amended L. 1939, c. 891, % 6, eff. June 16, 1939.
§158. Competing highways not to be authorized
The state of New York does pledge to and agree with the holders
of any bonds that the state will not authorize the construction or
maintenance of any parkway, causeway, bridge, tunnel, street, road,
highway or other connection for vehicular traffic, which will be competi¬
tive with Jones Beach parkway, nor will it limit or alter the rights
hereby vested in the authority to establish and collect such charges and
tolls as may be convenient or necessary to produce sufficient revenue
to meet the expense of maintenance and operation and fulfill the terms
of any agreements made with the holders of the bonds, or in any way
impair the rights and remedies of bondholders, until the bonds, together
with interest thereon, with interest on any unpaid installments of
principal and interest, and all costs and expenses in connection with
any actions or proceedings, by or on behalf of the bondholders, are
fully met and discharged ; provided that a parkway, causeway, bridge,
tunnel, street, road, highway or other connection for vehicular traffic
shall be considered as competitive only if it shall form a connection
for vehicular traffic between the mainland of Long Island and the island
of Long Beach east of the most easterly point of the present city of
Long Beach or between the mainland of Long Island and the island
on which Jones Beach park is located west of the most easterly point
of Oak island, or between the island of Long Beach and the island on
which Jones Beach park is located. This section shall be effective
only so long as bonds issued by the authority prior to January first,
nineteen hundred thirty-nine shall be outstanding and unpaid.
As amended L. 1939, c. 891, §7, eff. June 16, 1939.
f.
J
I
ADD 16
*
178
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
16
I§ 158-a. Covenants of the state
1. The state of New York does pledge to and agree with the holders
of any bonds issued pursuant to this act after January first, nineteen
hundred thirty-nine that it will not limit or alter the rights hereby
vested in the authority to construct, reconstruct, operate and main¬
tain the parkway, bridges and other improvements, or any of them,
and to collect revenues therefrom as authorized in this title insofar as
such rights may be necessary in order that the authority may fulfill the
terms of any agreements made with the holders of such bonds and that
it will not in any way impair the rights and remedies of the holders of
such bonds until the bonds, together with interest thereon, with interest
on any unpaid installments of principal and interest and all costs and
expenses in connection with any suits, actions or proceedings by or on
behalf of the bondholders are fully met and discharged.
2. The state of New York does pledge to and agree with the
holders of any bonds issued pursuant to this title after January first,
nineteen hundred thirty-nine which are secured by a pledge of the
revenues of Jones Beach parkway that it will not authorize or permit
the construction or maintenance of any parkway, causeway, bridge,
tunnel, street, road, highway or other connection for vehicular traffic
which will be competitive with Jones Beach parkway until such bonds
together with interest thereon, with interest on any unpaid install¬
ments of principal and interest and all costs and expenses in connec¬
tion with any suits, actions or proceedings by or on behalf of the bond¬
holders are fully met and discharged; provided that a parkway,
causeway, bridge, tunnel, street, road, highway or other connection for
vehicular traffic shall be considered as competitive only if it shall form
a connection for vehicular traffic between the mainland of Long Island
and the island of Long Beach east of the most easterly point of the
present city of Long Beach or between the mainland of Long Island and
the island on which Jones Beach park is located west of the most easterly
point of Oak island, or between the island of Long Beach and the island
on which Jones Beach park is located.
3. The state of New York does pledge to and agree with the holders
of any bonds issued pursuant to this title after January first, nineteen
hundred thirty-nine which are secured by a pledge of the revenues or
Captree bridge, that it will not authorize or permit the construction or
maintenance of any parkway, causeway, bridge, tunnel, street, roaa,
!
I
I
I
1
ADD 17
179
Exhibit A — Copy of the Resolution and of the Jones BeachState Parkway Authority Act annexed to Complaint.
17
| highway or other connection for vehicular traffic which shall be com¬
petitive with Captree bridge until such bonds, together with interest
thereon, with interest on any unpaid installments of principal and
interest, and all costs and expenses in connection with any suits, actions
or proceedings, by or on behalf of the bondholders, are fully met and
discharged ; provided that a parkway, causeway, bridge, tunnel, street,
road, highway or other connection for vehicular traffic shall be con¬
sidered as competitive only if it shall form a connection for vehicular
traffic across Great South bay between the mainland on Long Island
and either the island of Jones Beach or Fire island beach east of
Wantagh Btate parkway and west of Smith point.
As added L. 1939, c. 891, § 8, eff. June 16, 1939.
§ 158-b. Acquisition of real property
1. The authority shall have power from time to time to acquire,
in the name of the state, real property necessary in order to carry out
its corporate purposes or exercise of the powers granted by sections
one hundred fifty-three-b and one hundred fifty-eight-c of this title, by
purchase, gift, devise or condemnation pursuant to the provisions for
the acquisition of real property for public use provided for in the Nassau
county administrative code (chapter two hundred seventy-two of the
laws of nineteen hundred thirty-nine, as amended), except as otherwise
provided by this section.
2. In exercising the powers of condemnation pursuant to the Nas¬
sau county administrative code
(a) The function of the board of supervisors shall be exercised by
the board of the authority;
(b) The functions of the other county officials and employees re¬
ferred to therein shall be exercised by such officers, agents or employees
of the authority as the authority shall direct ;
(c) “court” shall mean the supreme court in and for the county of
Nassau ;
(d) The map of the real property affected by the acquisition re¬
quired by section eleven-twenty-two-zero of the said Nassau county
administrative code shall be filed only in the office of the county clerk.
Notice of such filing shall be given in the manner provided in said sec-
ADD 18
180
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
18
tion but no notice of hearing on such map shall be given nor shall a hear¬
ing on such map be required ;
(e) The authority shall furnish to the court such maps, surveyB,
diagrams or plans as shall be required for the purpose of this section.
(f) No part of the cost of acquisition shall be assessed on real
property benefited thereby.
(g) With the consent of the county executive of the county of Nas¬
sau, the authority may designate the county attorney of the county of
Nassau to conduct any such acquisition proceeding, paying to the county
such compensation for such services as may be agreed upon, together
with all costs and expenses payable or incurred by the county attorney
in connection with such proceeding, as certified by the comptroller of
said county.
(h) Where the compensation to be paid to owners of real property
acquired has not been determined by agreement or settlement it shall
be determined by the supreme court without a jury.
(i) The county board of assessors shall furnish to the attorney
acting for the authority a duplicate copy of the tax map of the county
relating to the real property to be acquired at the request of the attor¬
ney acting for the authority and the county clerk shall furnish such
attorney block and lot maps relating to such real property and shall
furnish information necessary to keep the maps furnished as accurate
as practicable.
(j) All costs and expenses incurred in connection with the acqui¬
sition of real property by the authority, of any officers, employees, or
departments of the county, including such amount of the salaries of
such officers or employees as may be agreed between the authority and
the county of Nassau, shall be paid by the authority forthwith upon
the certification to the chairman of the authority by the county comp¬
troller of the amounts of such costs and expenses.
(k) All compensation for the acquisition of property and damages
shall be paid by the authority.
3. The county of Nassau or any municipal corporation may ac¬
quire by purchase, gift, devise or condemnation real property necessary
for the improvements authorized in paragraphs one to five inclusive o
J
ADD 19
181
Exhibit A — Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
19
section one hundred fifty-three-b of this title and may donate or dedi¬
cate such real property to the state or may release to the state for such
improvements existing rights of way or easements not required for
county or municipal purposes; the county of Nassau and any such
municipal corporation may agree with the authority for the transfer
of any real property acquired or to be acquired by the county or such
municipality to the authority upon payment by the authority of such
part of the cost of such real property to the county or such municipality
as may be agreed.
As added L. 1953, c. 114, % 3, eff. March 17, 1953.
§ 158-c. Relocation of dwellings
1. It is hereby declared that any reduction in housing accommoda¬
tions on Long Island would be detrimental to the community ; that this
condition requires that provision be made for the relocation and reha¬
bilitation of dwellings affected by projects undertaken by the authority;
that the necessity, in the public interest for the provisions of this
section, is hereby declared as a matter of legislative determination.
2. Notwithstanding any other provision of law, the authority shall
have power whenever it shall acquire real property with dwellings
thereon (a) to acquire real property for the purpose of providing new
sites on which such dwellings may be relocated by purchase, gift, devise
or condemnation in the manner provided in this title, or, with the
approval of the director of the budget to use real property under the
jurisdiction of the authority for such purpose; (b) to sell such dwellings
or to provide for the removal and rehabilitation of such dwellings on
new foundations at such new sites by contract or by it own labor
force or by combination of such methods; (c) to contract for the instal¬
lation of services and facilities including water, sewer, gas, electricity
and other necessary appurtenances required for the complete restora¬
tion of such dwellings; (d) to landscape such sites; (e) to contract
with any person, firm or corporation or with a municipality for the
improvement or installation of streets, sewers, water lines or other
facilities in connection with the relocation of such dwellings and to
pay the cost thereof and any municipality is hereby authorized to enter
into any such contract; (f) to contract with the several owners of such
property for the conveyance of the new sites with improvements thereon
to such owner in settlement in part or in whole of the compensation and
ADD 20
1S2
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
20
damage to which they are entitled; and (g) to sell such sites with or
without dwellings and improvements thereon.
3. The authority may agree with the owners of property acquired,
in settlement in part or in whole of the damages to which they are
entitled, to compensate such owners for the cost of acquiring new sites,
removing dwellings thereto on new foundations, the installation of
services and facilities including water, sewerage, gas, electricity, and
other necessary appurtenances required for the complete restoration of
such dwelling; and landscaping of the new site.
4. This section shall be effective only until January first, nineteen
hundred fifty-six.
As added L. 1953, c. 114, § 4, eff. March 17, 1953.
§ 159. State not liable on bonds
The bonds and other obligations of the authority shall not be a
debt of the state and the state shall not be liable thereon nor shall they
be payable out of any funds other than those of the authority.
§ 160. Bonds legal investments for public officers and fiduciaries
The bonds are hereby made securities in which all public officers
and bodies of this state and all municipalities and municipal subdivi¬
sions, all insurance companies and associations and other persons
carrying on an insurance business, all banks, bankers, trust companies,
savings banks and savings institutions, including savings and loan asso¬
ciations, building and loan associations, investment companies and
other persons carrying on a banking business, administrators, guard¬
ians, executors, trustees and other fiduciaries and all other persons
whatsoever who are now or may hereafter be authorized to invest in
bonds or other obligations of the state may properly and legally invest
funds, including capital in their control or belonging to them. The
bonds are also hereby made securities which may be deposited with and
shall be received by all public officers and bodies of this state and aU
municipalities and municipal subdivisions for any purpose for which
the deposit of bonds or other obligations of this state is now or may
hereafter be authorized.
As amended L. 1939, c. 891, $ 10, eff. June 16, 1939.
ADD 21
183
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
21
§ 161. Bonds to be tax exempt
The bonds shall be exempt from taxation except for transfer and
estate taxes. This section shall apply only to bonds issued before
January first, nineteen hundred thirty-nine. Nothing in this section
shall be construed to repeal any tax exemption granted by general law.
As amended L. 1939, c.891, § 11, eff. June 16, 1939.
I
I
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§ 161-a. Tax contract by the state
1. It is hereby found, determined and declared that the authority
and the carrying out of its corporate purposes are in all respects for
the benefit of the people of the state, for the improvement of their
health, welfare and prosperity, and for the promotion of their traffic,
and that said purposes are public purposes and that the bridges, park¬
ways and improvements constructed or operated by the authority are
an essential part of the public park and parkway system and that the
authority is and will be performing an essential governmental function
in the exercise of the powers conferred upon it by law, and the state
of New York covenants with the purchasers and with all subsequent
holders and transferees of the bonds issued after January first, nineteen
hundred thirty-nine by the parkway authority pursuant to this title, in
consideration of the acceptance of and payment for the bonds that the
bonds of the authority issued after January first, nineteen hundred
thirty-nine pursuant to this title and the income therefrom and all
moneys, funds, tolls and other revenues pledged to pay or secure the
payment of such bonds shall at all times be free from taxation except
for estate taxes and taxes on transfers by or in contemplation of death.
2. Nothing herein shall be construed to repeal any tax exemptions
granted by general law.
As added L.1939, c. 891, % 12, eff. June 16, 1939.
I
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I
§ 162. Remedies of bondholders
1. In the event that the authority shall default in the payment of
principal of or interest on any issue of the bonds after the same shall
become due, whether at maturity or upon call for redemption, and such
default shall continue for a period of thirty days, or in the event that
the authority shall fail or refuse to comply with the provisions of this
title, or shall default in any agreement made with the holders of any
I
I
I
!
ADD 22
184
Exhibit A - Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
22
issue of the bonds, the holders of twenty-five per centum in aggregate
principal amount of such issue then outstanding by instrument or in¬
struments filed in the office of the clerk of the county of Nassau or of
Suffolk and proved or acknowledged in the same manner as a deed to
be recorded may appoint a trustee, to represent the bondholders for the
purposes herein provided.
2. Such trustee may, and upon written request of the holders of
twenty-five per centum in principal amount of such issue of bonds then
outstanding shall upon being furnished security satisfactory to the
trustee for the recovery of his or its expense and against loss and
liability in his or its own name.
(a) by mandamus or other suit, action or proceeding at law or in
equity, enforce all rights of the bondholders, including the right to
require the authority and the board to collect revenues adequate to
carry out any agreement as to, or pledge of, such revenues and to re¬
quire the authority and the board to carry out any other agreements
with the bondholders and to perform its and their duties under this title;
(b) bring suit upon the bonds;
(c) by action or suit in equity, require the authority to account as
if it were the trustee of an express trust for the bondholders ;
(d) by action or suit in equity, enjoin any acts or things which may
be unlawful or in violation of the rights of the bondholders ;
(e) declare all bonds of such issue due and payable and if all
defaults shall be made good, then with the consent of the holders of
twenty-five per centum of the principal amount of such issue then out¬
standing, to annul such declaration and its consequences.
3. The supreme court shall have jurisdiction of any suit, action
or proceeding by the trustee on behalf of the bondholders. The venue
of any such suit, action or proceeding shall be laid in Nassau county or
Suffolk county.
4. Any such trustee, whether or not the issue of bonds represented
by such trustee has been declared due and payable, shall be entitled
as of right to the appointment of a receiver of any part or parts of the
project the revenues of which are pledged for the security of the bonds
of such issue and such receiver may enter and take possession of said
ADD 23
r 185
Exhibit A - Copy of the Resolution and of the Jones BeachState Parkway Authority Act annexed to Complaint.
23
part or parts of the project and subject to any pledge or agreement
with bondholders shall take possession of all moneys and other prop¬
erty derived from or applicable to the construction, operation, mainte¬
nance and reconstruction of said part or parts of the project and pro¬
ceed with any construction thereon which the authority is under
obligation to do and to operate, maintain and reconstruct the said part
or parts of the project and collect and receive all revenues thereafter
arising therefrom subject to any pledge thereof or agreement with
bondholders relating thereto and perform the public duties and carry
out the agreements and obligations of the authority under the direction
of the court. In any suit, action or proceeding by the trustee the fees,
counsel fees and expenses of the trustee and of the receiver, if any,
shall constitute taxable disbursements and all costs and disbursements
allowed by the court shall be a first charge on any revenues.
5. Such trustee shall in addition to the foregoing have and possess
all of the powers necessary or appropriate for the exercise of any func¬
tions specifically set forth herein or incident to the general representa¬
tion of the bondholders in the enforcement and protection of their
rights.
i
i
i 6. All bonds issued pursuant to the same resolution, although
issued at different times and with different terms and provisions and
although supplemental resolutions may be required prior to the issu¬
ance of part of such bonds, shall constitute one issue for the purposes
of this section, but any resolution may provide that the bonds issued
pursuant thereto shall constitute one or more separate issues for the
purposes of this section.
As amended L. 1939, c. 891, § 13, eff. June 16, 1939.
I
§ 163. Rules and regulations of the commission
The use by the public of Jones Beach parkway, Captree bridge,
Captree parkway and any other improvement operated by the park¬
way authority shall be subject to the rules and regulations of the com¬
mission and such rules and regulations shall be enforced in the same
manner as the Long Island state park ordinances, all as provided in
section seven hundred and seventy-five of the conservation law; pro¬
vided, however, that the commission shall have no authority to alter
or change any of the facilities hereby placed under the authority or
,
ADD 24
186
Exhibit A- Copy of the Resolution and of the Jones Beach
State Parkway Authority Act annexed to Complaint.
24
do anything which will impair the security of the bondholders or violate
limitations contained in any agreement with bondholders.
As amended L. 1939, c. 891, § 14, eff. June 16, 1939.
§ 164. Title not affected if in part unconstitutional or ineffective
If any section, clause or provision of this title shall be unconsti¬
tutional or be ineffective in whole or in part, to the extent that it is not
unconstitutional or ineffective it shall be valid and effective and no
other section, clause or provision shall on account thereof be deemed
invalid or ineffective.
§ 165. Inconsistent provisions in other acts superseded
Insofar as the provisions of this title are inconsistent with the
provisions of any other act, general or special, the provisions of this
title shall be controlling.
1