No. ___________
`IN THE
`Supreme Court of the United States
`__________________
`
`NEW JERSEY TRANSIT CORPORATION, ET AL.,
`Applicants,
`
`
`
`
`
`v.
`
`JEFFREY COLT AND BETSY TSAI
`__________________
`
`APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A
`PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK COURT OF
`APPEALS
`__________________
`
`Pursuant to Rules 13.5 and 30.2 of the rules of this Court, undersigned
`
`1.
`
`counsel respectfully requests a 30-day extension of time, to and including Wednesday,
`
`March 26, 2025, within which to file a petition for a writ of certiorari to review the
`
`judgment of the New York Court of Appeals in this case. Applicants (defendants-
`
`appellants below) are the New Jersey Transit Corporation; NJ Transit Bus
`
`Operations, Inc.; and Ana Hernandez.
`
`2.
`
`The opinion of the New York Court of Appeals (App., infra, 1a-80a) is
`
`pending publication, ___ N.E.3d ___, and is available at 2024 WL 4874365. The court
`
`of appeals entered its judgment on November 25, 2024. Unless extended, the time
`
`for filing a petition for writ of certiorari will expire on February 24, 2025. The
`
`jurisdiction of this Court would be invoked under 28 U.S.C. §1254(1).
`
`3.
`
`Applicant New Jersey Transit Corporation (NJ Transit) operates public
`
`transportation for the State of New Jersey. On February 9, 2017, an NJ Transit bus
`
`allegedly collided with and injured plaintiff Jeffrey Colt in a crosswalk in Manhattan.
`
`1
`
`

`

`Plaintiffs brought this action for damages against Applicants in New York state court
`
`in 2017. Defendants asserted a lack of jurisdiction and immunity in their Answer,
`
`and in 2020 moved to dismiss on the basis of sovereign immunity. The New York
`
`Supreme Court denied the motion, and a divided panel of the Appellate Division
`
`affirmed. Colt v. New Jersey Transit Corp., 206 A.D.3d 126, 133 (N.Y. App. Div. 1st
`
`Dep’t, May 24, 2022). Applicants appealed.
`
`4.
`
`A divided New York Court of Appeals also affirmed, concluding that
`
`Applicants could not invoke the State of New Jersey’s sovereign immunity in the New
`
`York courts. The majority interpreted this Court’s decision in Franchise Tax Board
`
`of California v. Hyatt, 587 U.S. 230 (2019), to set forth the test for determining
`
`whether a state-created entity is entitled to invoke sovereign immunity “is whether
`
`subjecting [that] state-created entity in New York would offend that State’s dignity
`
`as a sovereign,” and held, “to answer this question, courts must analyze how the State
`
`defines the entity and its functions, its power to direct the entity’s conduct, and the
`
`effect on the State of a judgment against the entity.” App., infra, 2a. The court
`
`acknowledged that federal courts of appeals have issued “an array of multifactor and
`
`multistep tests,” id. at 10a, and distilled its three factors from this Court’s decisions
`
`and other federal cases in both the interstate and Eleventh Amendment contexts,
`
`instructing that courts “need not give equal weight to each consideration,” id. at 12a.
`
`The majority also acknowledged that the U.S. Court of Appeals for the Third Circuit
`
`had recently concluded that NJ Transit was entitled to invoke sovereign immunity
`
`as an arm of the State of New Jersey, id. at 10a, n.4 (citing Karns v. Shanahan, 879
`
`F.3d 504, 518-19 (CA3 2018)), but acknowledged that while it “of course respect[ed]
`
`2
`
`

`

`the Third Circuit’s analysis,” it “‘remain[ed] at liberty to answer’ this question ‘in a
`
`manner that may conflict with the determinations of courts in our [or other] federal
`
`circuit[s],” id. at 10a-11a, n.4 (citation omitted).
`
`5.
`
`In applying its test, the majority concluded that the first factor “lean[ed]
`
`toward” according sovereign immunity, observing that New Jersey characterizes NJ
`
`Transit as “an instrumentality of the State exercising public and essential
`
`government functions.” Id. at 12a. The majority concluded that the second factor did
`
`not “weigh heavily in either direction,” reasoning that “while NJT maintains the
`
`broad authority to conduct its business without the State’s authorization, the
`
`Governor maintains the ability to influence its operations through their exercise of
`
`appointment and veto powers.” Id. at 15a. The majority found the third factor, the
`
`financial effect of a judgment, dispositive, holding that “allowing this suit to proceed
`
`would not be an affront to New Jersey’s dignity” because NJ Transit, not the State,
`
`would be “the entity that would bear legal liability.” Id. at 16a.
`
`6.
`
`Three Justices wrote separately. Justice Halligan concurred, but stated
`
`that the majority’s “reliance on ‘dignity’ raise[d] more questions than it answers.” Id.
`
`at 19a. Chief Judge Wilson concurred in the result, arguing that the correct test was
`
`“whether the function performed by the entity is what would, under customary
`
`international law and the common law, be considered a core governmental function
`
`to which sovereign immunity would have extended,” id. at 32, and “disagree[ing] that
`
`the Eleventh Amendment and associated caselaw has any bearing on the question at
`
`hand,” id. at 33a. Judge Rivera dissented, concluding that principles of sovereign
`
`immunity barred suits against NJ Transit in New York’s courts because New Jersey
`
`3
`
`

`

`“(1) regards NJT as an arm of the State; (2) empowers NJT to perform an essential
`
`governmental function; and (3) endows NJT with exclusive powers of the State in
`
`furtherance of the enabling act’s statutory purpose.” Id. at 66a.
`
`7.
`
`As the New York Court of Appeals noted, a case raising the same legal
`
`issue is currently pending before the Pennsylvania Supreme Court. See Galette v. NJ
`
`Transit, 313 A.3d 450 (Pa. 2024). The Pennsylvania Supreme Court heard oral
`
`argument in that case on September 11, 2024, but has not yet rendered a decision.
`
`8.
`
`Applicants are considering whether to file a petition for writ of certiorari
`
`in this case. The additional time sought is needed, both in light of the competing
`
`responsibilities for the attorneys handling this case, and in light of the likelihood of
`
`an imminent ruling from the Pennsylvania Supreme Court on the same legal issue,
`
`to permit further internal consultations regarding the ramifications of the New York
`
`high court’s opinion and, if certiorari is authorized, to prepare the petition.
`
`
`
`
`
`
`
`
`
`February 13, 2025
`
`
`
`
`
`
`Respectfully submitted,
`
` /s/ Jeremy M. Feigenbaum
`JEREMY M. FEIGENBAUM*
`Solicitor General of New Jersey
`State of New Jersey
`Office of the Attorney General
`25 Market Street
`Trenton, NJ 08625
`(609) 414-0197
`Jeremy.Feigenbaum@njoag.gov
`*Counsel of Record
`
`
`
`
`4
`
`

`

`State of New York
`Court of Appeals
`
`OPINION
`
`This opinion is uncorrected and subject to revision
`before publication in the New York Reports.
`
`No. 72
`
`Jeffrey Colt et al.,
`Respondents,
`
`v.
`New Jersey Transit Corporation,
`et al.,
`
`Appellants.
`
`Katherine L. Pringle, for appellants.
`Brian J. Shoot, for respondents.
`New York State Trial Lawyers Association, amicus curiae.
`
`SINGAS, J.:
`
`In Franchise Tax Bd. of Cal. v Hyatt, the United States Supreme Court recognized
`
`that the text and structure of the Federal Constitution not only preserved States’ pre-
`
`ratification sovereign immunity, but compelled absolute recognition of that immunity in
`
`- 1 -
`App. 1a
`
`

`

`- 2 -
`
`No. 72
`
`other States’ courts as a matter of “equal dignity and sovereignty” (587 US 230, 244-247
`
`[2019] [hereinafter Hyatt III], overruling Nevada v Hall, 440 US 410 [1979]). However,
`
`the Court did not address how to determine whether a state-created entity is entitled to this
`
`immunity. We glean from the Court’s analysis that the relevant inquiry is whether
`
`subjecting a state-created entity to suit in New York would offend that State’s dignity as a
`
`sovereign. We hold that, to answer this question, courts must analyze how the State defines
`
`the entity and its functions, its power to direct the entity’s conduct, and the effect on the
`
`State of a judgment against the entity. Considering these factors, we conclude that
`
`maintaining this action against defendant New Jersey Transit Corporation (NJT) in our
`
`courts would not offend New Jersey’s sovereign dignity and accordingly hold that
`
`defendants are not entitled to invoke a sovereign immunity defense.
`
`I.
`
`On February 9, 2017, a bus owned and operated by NJT allegedly struck and injured
`
`plaintiff Jeffrey Colt as he traversed a crosswalk on 40th Street in Manhattan. The bus was
`
`driven by defendant Ana Hernandez, an employee of NJT. Colt and his wife, plaintiff Betsy
`
`Tsai, commenced this action on September 18, 2017, asserting causes of action for
`
`negligence, negligent hiring, and loss of consortium. Defendants answered the complaint
`
`and denied many of plaintiffs’ factual allegations. Defendants asserted—as part of an
`
`exhaustive list including many boilerplate defenses—that plaintiffs’ recovery was “barred
`
`by lack of jurisdiction over NJT” and “barred as this Court lacks jurisdiction,” and that
`
`defendants were “immune from suit.” Defendants did not specifically reference sovereign
`
`immunity. In 2018, plaintiffs filed a bill of particulars, and defendants deposed Colt. In
`
`- 2 -
`App. 2a
`
`

`

`- 3 -
`
`No. 72
`
`2019, plaintiffs deposed Hernandez and another NJT employee who was on the bus at the
`
`time of the accident. The parties had status conferences and stipulated to scheduling orders
`
`six times during that period. In November 2019, defendants moved to compel discovery
`
`and subsequently stipulated to three more scheduling orders.
`
`On July 15, 2020, defendants moved to dismiss the complaint. Relying on Hyatt
`
`III—decided 14 months prior—defendants argued that NJT is “the alter ego of New Jersey”
`
`and therefore protected by sovereign immunity. In support of its argument that NJT was an
`
`“arm of the state” entitled to invoke sovereign immunity, defendants cited a decision by
`
`the United States Court of Appeals for the Third Circuit holding that NJT is entitled to
`
`invoke sovereign immunity in federal court (see Karns v Shanahan, 879 F3d 504, 519 [3d
`
`Cir 2018]). Defendants contended that NJT’s immunity extended to defendant New Jersey
`
`Transit Bus Operations, Inc., as a wholly owned subsidiary of NJT, and to Hernandez
`
`because she was acting within the scope of her employment with NJT. Defendants argued
`
`that their sovereign immunity defense could be raised at any time because it was
`
`jurisdictional and therefore could not be waived. Plaintiffs opposed the motion and asserted
`
`several grounds on which NJT waived any immunity it possessed.
`
`On October 2, 2020, Supreme Court denied defendants’ motion (2020 NY Slip Op
`
`33260[U] [Sup Ct, NY County 2020]). The court held that, by waiting three years from the
`
`inception of the action to raise a jurisdictionally based objection, defendants had waived
`
`their right to assert a sovereign immunity defense (id. at *3-4). Defendants appealed.
`
`The Appellate Division affirmed in a split decision (206 AD3d 126 [1st Dept 2022]).
`
`The Court concluded that NJT did not waive its sovereign immunity defense. At the outset,
`
`- 3 -
`App. 3a
`
`

`

`- 4 -
`
`No. 72
`
`the Court noted that it had previously held that NJT was an arm of the State of New Jersey
`
`and thus entitled to invoke sovereign immunity (id. at 128, citing Fetahu v New Jersey Tr.
`
`Corp., 197 AD3d 1065, 1065 [1st Dept 2021]). The Court further concluded that, contrary
`
`to Supreme Court’s holding, defendants had not waived this immunity through their
`
`litigation conduct, or otherwise (id. at 129).
`
`The Court nonetheless affirmed because dismissal would be “an affront to our sense
`
`of justice and cannot be countenanced” (id. at 133). In reaching this conclusion it
`
`considered whether plaintiffs would have been able to bring their suit in New Jersey under
`
`the New Jersey Tort Claims Act (NJTCA). Reviewing New Jersey’s venue rules, the Court
`
`concluded that “plaintiffs cannot commence an action in New Jersey because the cause of
`
`action arose outside its borders” (id. at 130). Thus, the Court concluded that there was an
`
`issue “pitting the sovereign immunity defense against an individual’s fundamental right
`
`derived from the common law to be able to seek redress in a judicial forum for injuries
`
`inflicted by a tortfeasor” (id. at 132). Resolving this issue by analogy to the forum non
`
`conveniens doctrine, the Court concluded that these factors weighed in favor of retaining
`
`the action, reasoning that NJT would not be prejudiced by allowing the suit to proceed,
`
`given that it waited three years to move to dismiss, would not be burdened by defending
`
`the action in New York, where all of the material witnesses and evidence were located, and
`
`plaintiffs would not be able to sue in New Jersey’s courts (id. at 133).
`
`Two Justices dissented, contending that the Court’s inquiry should be limited to
`
`whether defendants could assert a sovereign immunity defense and whether they had
`
`waived that defense (id. at 136 [Friedman, J., dissenting]). On those questions, the dissent
`
`- 4 -
`App. 4a
`
`

`

`- 5 -
`
`No. 72
`
`agreed that NJT was an arm of the State of New Jersey, and that neither the NJTCA nor
`
`defendants’ litigation conduct had waived the sovereign immunity defense (id.). The
`
`dissent disagreed that plaintiffs’ inability to file suit in New Jersey had any relevance to
`
`the sovereign immunity analysis because no legal authority requires States to waive their
`
`sovereign immunity under any circumstances (id. at 138-139).
`
`Defendants appealed, but we dismissed the appeal for lack of finality (see 39 NY3d
`
`954 [2022]). The Appellate Division granted defendants leave to appeal and certified the
`
`question of whether its order was properly made (see 2023 NY Slip Op 64078[U] [1st Dept
`
`2023]). We now affirm, albeit on different grounds.
`
`II.
`
`Hyatt III fundamentally altered the landscape of interstate sovereign immunity.
`
`Overturning Nevada v Hall, the Court “clarif[ied] that all state sovereign immunity derives
`
`from the structure of the Constitution which confirmed and retained pre-ratification notions
`
`of state sovereign immunity ‘except as altered by the plan of the Convention or certain
`
`constitutional Amendments’ ” (Henry v New Jersey Tr. Corp., 39 NY3d 361, 370 [2023]
`
`[some internal quotation marks omitted], quoting Hyatt III, 587 US at 241). Under Hall,
`
`the Supreme Court had looked to “international-law notions of immunity,” which treated
`
`the “decision for one State to extend immunity to another State in its own courts [ ]as a
`
`matter of comity for the forum State to decide” (id. at 369, citing Hall, 440 US at 421, 425).
`
`Hyatt III abrogated this aspect of Hall, concluding instead that as an “essential component
`
`of federalism,” by entering the Union, the States, which had previously “relate[d] to each
`
`other solely as foreign sovereigns” were “strip[ped] . . . of any power they once had to
`
`- 5 -
`App. 5a
`
`

`

`- 6 -
`
`No. 72
`
`refuse each other sovereign immunity” under international law (Hyatt III, 587 US at 245,
`
`247 [internal quotation marks omitted]). In other respects, however, the Court concluded
`
`that the States maintained their pre-ratification immunity “under both the common law and
`
`the law of nations” (id. at 241).
`
`Because interstate sovereign immunity was a matter of comity before Hyatt III—
`
`constrained by the Federal Constitution’s Full Faith and Credit Clause—few decisions
`
`explored which parties, other than a State itself, are entitled to invoke sovereign immunity
`
`in another State’s courts. Wading into these uncharted waters, we look for guidance in the
`
`Court’s opinion in Hyatt III as well as the related jurisprudence of state sovereign immunity
`
`in federal courts. As we explained in Henry, the Supreme Court in Hyatt III noted that
`
`“[s]overeign immunity derives from the common-law premise
`that ‘no suit or action can be brought against the king, even in
`civil matters, because no court can have jurisdiction over him’
`(1 William Blackstone, Commentaries on the Laws of England
`at 235 [1765]; see Hyatt III, 587 US at [238-239]; see also
`Glassman v Glassman, 309 NY 436, 440 [1956]). Because ‘all
`jurisdiction implies superiority of power,’ no authority could
`hear a case ‘unless that court had power to command the
`execution of it; but who . . . shall command the king?’ (1
`Blackstone at 235). . . . Sovereign immunity also emanates
`from the conceit of ‘the perfect equality and absolute
`independence of sovereigns under . . . international law’ (Hyatt
`III, 587 US at [239] [internal quotation marks omitted])”
`(Henry, 39 NY3d at 368; see also Beers v Arkansas, 20 How
`[61 US] 527, 529 [1857]; The Antelope, 10 Wheat [23 US] 66,
`122 [1825]).
`
`Before ratification, the States—as foreign sovereigns—recognized each other’s dignity by
`
`affording immunity in their own courts as a matter of comity (see Hyatt III, 587 US at 244-
`
`245). But when the States’ discretion was removed, their obligation to respect each other’s
`
`- 6 -
`App. 6a
`
`

`

`- 7 -
`
`No. 72
`
`sovereign dignity in their own courts became absolute (see id. at 245). Thus, in exploring
`
`the limits of a state-created entity’s sovereign immunity in our courts, our basic task is to
`
`determine whether allowing the suit to proceed under the circumstances would offend our
`
`sister State’s “equal dignity and sovereignty under the Constitution” (id.).
`
`Our analysis aligns with the framework many courts apply in analyzing whether a
`
`state-created entity may invoke sovereign immunity in federal court—often called
`
`“Eleventh Amendment immunity”1—which is rooted in the same pre-ratification notions
`
`of State dignity (see Federal Maritime Comm’n v South Carolina Ports Authority, 535 US
`
`743, 760 [2002] [“The preeminent purpose of state sovereign immunity is to accord States
`
`the dignity that is consistent with their status as sovereign entities”]; Seminole Tribe of Fla.
`
`v Florida, 517 US 44, 58 [1996] [sovereign immunity “serves to avoid the indignity of
`
`subjecting a State to the coercive process of judicial tribunals at the instance of private
`
`parties” (internal quotation marks omitted)]; Hess v Port Authority Trans-Hudson
`
`Corporation, 513 US 30, 47 [1994] [analyzing whether suit in federal court was a “threat
`
`to the dignity” of the State]). While the text of the Eleventh Amendment applies only to
`
`federal courts, the Supreme Court has explained that it “stand[s] not so much for what it
`
`says, but for the presupposition of our constitutional structure which it confirms: that the
`
`States entered the federal system with their sovereignty intact . . . [and] that the [federal]
`
`1 The Supreme Court has explained that the phrase “Eleventh Amendment immunity” is a
`“misnomer” because “States’ immunity from suit is a fundamental aspect of the
`sovereignty which the States enjoyed before the ratification of the Constitution” (Alden v
`Maine, 527 US 706, 713 [1999]; see Northern Ins. Co. of N. Y. v Chatham County, 547 US
`189, 193 [2006]).
`
`- 7 -
`App. 7a
`
`

`

`- 8 -
`
`No. 72
`
`judicial authority . . . is limited by this sovereignty” (Blatchford v Native Village of Noatak,
`
`501 US 775 [1991]). It is these same principles that underpinned the Court’s rejection of
`
`Hall in Hyatt III. Indeed, in Hyatt III, the Court reaffirmed that the Eleventh Amendment
`
`“reflect[ed]” and reaffirmed existing state sovereign immunity, rather than establishing a
`
`new “source of sovereign immunity” that limits only the jurisdiction of the federal courts
`
`(Hyatt III, 587 US at 241, 247; see also Virginia Office for Protection and Advocacy v
`
`Stewart, 563 US 247, 253 [2011] [the Eleventh Amendment reflects “the structural
`
`understanding that States entered the Union with their sovereign immunity intact”]). The
`
`Supreme Court has rejected the idea that the Eleventh Amendment represents an
`
`independent limitation on federal courts’ subject matter jurisdiction over suits involving
`
`States (see Federal Maritime Comm’n, 535 US at 753 [“the Eleventh Amendment does not
`
`define the scope of the States’ sovereign immunity; it is but one particular exemplification
`
`of that immunity”]; compare PennEast Pipeline Co. v New Jersey, 594 US 482, 506 [2021]
`
`[rejecting dissenting opinion’s assertion that the Eleventh Amendment imposes an
`
`independent jurisdictional limitation], with id. at 510-512 [Gorsuch, J., dissenting] [arguing
`
`that the Eleventh Amendment both confirms pre-ratification structural immunity and
`
`eliminates federal judicial power in certain cases]).2 Because States’ sovereign immunity
`
`in federal and state courts are analytically and historically intertwined, we deem it
`
`2 The concurrence’s analysis eschewing the use of federal court arm-of-the-state
`jurisprudence (see Wilson, Ch. J., concurring op at 24-34) rests on this flawed premise.
`
`- 8 -
`App. 8a
`
`

`

`- 9 -
`
`No. 72
`
`appropriate to conduct our analysis consistent with the Supreme Court’s and other federal
`
`court’s arm-of-the-state jurisprudence.
`
`The Supreme Court has explained that “when the action is in essence one for the
`
`recovery of money from the state, the state is the real, substantial party in interest and is
`
`entitled to invoke its sovereign immunity from suit” (Ford Motor Co. v Department of
`
`Treasury of Ind., 323 US 459, 464 [1945]). In assessing whether a state-created entity is a
`
`so-called “arm of the state,” the Supreme Court has looked to the “ ‘the essential nature
`
`and effect of the proceeding’ ” (see Regents of Univ. of Cal. v Doe, 519 US 425, 429 [1997],
`
`quoting Ford Motor Co., 323 US at 464) and the “ ‘nature of the entity created by state
`
`law’ ” (id., quoting Mt. Healthy City Bd. of Ed. v Doyle, 429 US 274, 280 [1977]). The
`
`Court has considered the degree of the State’s control over the entity, how state law
`
`characterizes the entity, whether the entity performs traditional state governmental
`
`functions, and whether the State would be liable, or financially responsible, for a judgment
`
`against the entity (see Hess, 513 US at 44-45; Lake Country Estates, Inc. v Tahoe Regional
`
`Planning Agency, 440 US 391, 400-401 [1979]; Mt. Healthy City Bd. of Ed., 429 US at
`
`280; Moor v County of Alameda, 411 US 693, 717-721 [1973]).3 The Court has also
`
`analyzed whether there is evidence that the State structured the entity “to enable it to enjoy
`
`3 The Court has cautioned, however, that a State’s actual control over a state-created entity
`is not necessarily dispositive, because “ultimate control of every state-created entity resides
`with the State, for the State may destroy or reshape any unit it creates” (Hess, 513 US at
`47).
`
`- 9 -
`App. 9a
`
`

`

`the special constitutional protection of the States themselves” (Lake Country Estates, Inc.,
`
`- 10 -
`
`No. 72
`
`440 US at 401).
`
`Federal Circuit Courts have identified more specific considerations in an array of
`
`multifactor and multistep tests (see e.g. Fresenius Med. Care Cardiovascular Resources,
`
`Inc. v Puerto Rico & the Caribbean Cardiovascular Ctr. Corp., 322 F3d 56, 68-75 [1st Cir
`
`2003]; Mancuso v New York State Thruway Auth., 86 F3d 289, 293-297 [2d Cir 1996];
`
`Karns, 879 F3d at 513-519; Hutto v South Carolina Retirement Sys., 773 F3d 536, 543-
`
`548 [4th Cir 2014]; Clark v Tarrant County, 798 F2d 736, 744-745 [5th Cir 1986]; Ernst v
`
`Rising, 427 F3d 351, 359-361 [6th Cir 2006]; DuPage Regional Off. of Educ. v United
`
`States Dept. of Educ., 58 F4th 326, 341-350 [7th Cir 2023]; United States ex rel. Fields v
`
`Bi-State Dev. Agency of Mo.-Ill. Metro. Dist., 872 F3d 872, 877-883 [8th Cir 2017]; Kohn
`
`v State Bar of Cal., 87 F4th 1021, 1025-1032 [9th Cir 2023]; Hennessey v University of
`
`Kan. Hosp. Auth., 53 F4th 516, 528-542 [10th Cir 2022]; Manders v Lee, 338 F3d 1304,
`
`1308-1328 [11th Cir 2003]; Puerto Rico Ports Auth. v Federal Maritime Commn., 531 F3d
`
`868, 873-881 [DC Cir 2008]).4 Indeed,
`
`4 The Third Circuit previously considered NJT not to be an arm of New Jersey for nearly
`three decades (see Fitchik v New Jersey Tr. Rail Operations, Inc., 873 F2d 655 [3d Cir
`1989]). Recently, however, the Third Circuit overruled that precedent, in part, based on its
`view that the Supreme Court has shifted away from emphasizing the state fisc in the context
`of state sovereign immunity in federal court, therefore tipping the result of the Third
`Circuit’s balancing test the other way (Karns, 879 F3d at 518-519; but see Galette v NJ
`Transit, 2023 PA Super 46, 293 A3d 649 [2023], appeal granted 313 A3d 450 [Pa 2024]
`[holding that NJT is not an arm of New Jersey in the interstate immunity context]). While
`we of course respect the Third Circuit’s analysis, we “remain at liberty to answer” this
`question “in a manner that may conflict with the determinations of courts in our [or other]
`
`- 10 -
`App. 10a
`
`

`

`- 11 -
`
`No. 72
`
`“courts take numerous factors into consideration, including the
`statute creating the particular agency, whether the defendant
`has state-court immunity, decisions by the state courts, and
`decisions involving such agencies in other states. Also
`important are the powers of the agency vis-a-vis the state—for
`example, its powers to contract, to sue or be sued, to raise
`revenue, and to expend funds. In the final analysis, central
`factors appear to be the degree of autonomy of the defendant
`and whether recovery against it will come from state funds; if
`the unit or individual is simply functioning as the alter ego of
`the state in accomplishing some public purpose, it will be
`treated as the state and entitled to immunity” (13 Charles Alan
`Wright & Arthur R. Miller, Federal Practice and Procedure §
`3524.2 [3d ed, June 2024 update] [footnote omitted]).
`
`Many Federal Circuit Courts look to the State’s dignity as a foundational principle in
`
`analyzing arm-of-the-state status (see e.g. Mancuso, 86 F3d at 296 [“the sole question
`
`remaining is whether suit in federal court will be an affront to the dignity of New York
`
`State”]; Hutto, 773 F3d at 546 [analyzing factors to determine “whether allowing suit
`
`against a state entity would offend a State’s dignity”]). The Supreme Court has not yet
`
`endorsed any particular Circuit’s formulation of the arm-of-the-state test.
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`III.
`
`We distill from Hyatt III and other federal cases the following factors, adapted to
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`our current use in the interstate sovereign immunity context. In considering whether a
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`foreign state-created entity is entitled to sovereign immunity in New York, courts should
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`consider: (1) how the State defines the entity and its functions, (2) the State’s power to
`
`direct the entity’s conduct, and (3) the effect on the State of a judgment against the entity.
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`federal circuit[s]” (Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp., 24
`NY3d 538, 551 [2014]).
`
`- 11 -
`App. 11a
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`

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`No. 72
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`Courts need not give equal weight to each consideration, and the underlying indicia may
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`vary by case and from one party to another. We do not find it necessary to list more specific
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`subfactors that might not be relevant to all cases. Rather, we analyze each consideration
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`with the fundamental goal of determining whether allowing a suit against the foreign state-
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`created entity to proceed in our courts would offend our sister State’s dignity. Applying
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`these principles to the present case, we conclude that NJT does not enjoy New Jersey’s
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`sovereign immunity.
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`A.
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`First, to determine whether the entity is an extension of the State and its powers, we
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`examine how the State defines the entity and its functions. Initially, the State’s own
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`characterization of NJT conflicts somewhat as to whether it envisions NJT as a separate
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`corporation serving the public or an extension of the State. The New Jersey Legislature
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`created NJT to “establish and provide for the operation and improvement of a coherent
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`public transportation system” (NJ Stat § 27:25-2 [b]), deeming the “provision of efficient,
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`coordinated, safe and responsive public transportation” to be “an essential public purpose
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`which promotes mobility, serves the needs of the transit dependent, fosters commerce,
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`conserves limited energy resources, protects the environment and promotes sound land use
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`and the revitalization of our urban centers” (id. § 27:25-2 [a]). Though New Jersey law
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`gives NJT a separate corporate existence, it classifies NJT as a department within New
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`Jersey’s Executive Branch, specifically its Department of Transportation (id. § 27:25-4
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`[a]). It also characterizes NJT as “an instrumentality of the State exercising public and
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`essential governmental functions” (id. § 27:25-4 [a]). NJT has the power to sue and be sued
`
`- 12 -
`App. 12a
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`

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`- 13 -
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`No. 72
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`(id. § 27:25-5 [a]). Though New Jersey law prohibits NJT from asserting sovereign
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`immunity in certain actions based on federal law, in doing so, it appears to take no position
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`on whether NJT is entitled to sovereign immunity in the first instance (see id. § 27:25-24.2
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`[“if such defense is found to be available, the defense shall be waived”]).
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`Nonetheless, some state cases describe NJT as a state agency (see e.g. New Jersey
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`Tr. PBA Local 304 v New Jersey Tr. Corp., 290 NJ Super 406, 408, 675 A2d 1180, 1181
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`[App Div 1996] [NJT “is a state agency responsible for operating and improving public
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`transportation in New Jersey”]). Moreover, the New Jersey Supreme Court has held that
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`“NJT is a public entity within the ambit of the [NJ]TCA” notwithstanding that NJT is not
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`included within that law’s definition of a “State” (Muhammad v New Jersey Tr., 176 NJ
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`185, 194, 821 A2d 1148, 1153 [2003]). However, this carries less weight in our analysis,
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`given that the NJTCA expansively includes many entities that would not be considered
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`arms of the state for sovereign immunity purposes (see NJ Stat § 59:1-3). We must also
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`take into account that NJT may pass rules and regulations with the “force and effect of
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`law” in accordance with the New Jersey Administrative Procedure Act (id. § 27:25-5 [e]).
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`And it is not required to pay state taxes (id. § 27:25-16).
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`Additionally, it is debatable whether operating an intrastate and interstate
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`transportation network is a traditional state governmental function given the myriad other
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`non-state public and private entities that provide similar services (see Hess, 513 US at 45).
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`Though, NJT’s unique status provides few analogues.5
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`5 We decline to adopt the concurrence’s circular “core functions” framework (Wilson, Ch.
`J., concurring op at 23 [an entity is entitled to sovereign immunity if it performs functions
`- 13 -
`App. 13a
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`

`

`- 14 -
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`No. 72
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`On balance, we conclude that this factor leans toward according NJT sovereign
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`immunity.
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`B.
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`The second factor asks whether the State directs the entity’s conduct such that the
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`entity acts at the State’s behest. NJT exercises significant independence from New Jersey’s
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`control. “Notwithstanding” its classification under the Department of Transportation’s
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`umbrella, NJT is “independent of any supervision or control by the department or by any
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`body or officer thereof” (NJ Stat § 27:25-4 [a]). In fulfilling their duties, NJT’s board
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`members must exercise their “independent judgment in the best interest of [NJT], its
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`mission, and the public” (id. § 27:25-4.1 [b]). New Jersey’s government does not direct the
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`day-to-day operations of NJT. Rather, in directing its own operations, NJT has the power
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`to, among other things, “make and alter bylaws for its organization and internal
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`management and for the conduct of its affairs and business,” transact in real and personal
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`property and collect revenues for its operations, set fares and collect fare revenue for its
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`operations, and enter into agreements and contracts (id. § 27:25-5 [c], [j], [k], [n], [o], [v]).
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`On the other hand, NJT remains beholden to the State in some respects. The
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`members of NJT’s board are appointed by the Governor, either for that office, or by virtue
`
`of their appointment as members of the Executive Branch, though they may be removed
`
`that are “necessary for the State to maintain its sovereign status and sustain itself as a
`government”]), which pays lip service to, but is entirely unmoored from Hyatt III. The
`concurrence also disregards that the U.S. Supreme Court maintains original and exclusive
`jurisdiction over disputes between States (see US Const, art III, § 2).
`
`- 14 -
`App. 14a
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`

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`- 15 -
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`No. 72
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`only for cause (id. § 27:25-4 [b]). The Commissioner of Transportation, an executive
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`branch official who is the chairman of NJT’s governing board, rev