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HENRY v. NEW JERSEY TR. CORP.

Index No. 156496/15. Appeal No. 13387. Case No. 2020-00380.

195 A.D.3d 444 (2021)

144 N.Y.S.3d 851

2021 NY Slip Op 03527

Kathleen Henry, Respondent, v. New Jersey Transit Corporation et al., Appellants, et al., Defendant.

Appellate Division of the Supreme Court of New York, First Department.

Decided June 3, 2021.

Attorney(s) appearing for the Case

McGivney Kluger Clark & Intoccia, P.C., New York ( Dean L. Pillarella , of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, New York ( Brian J. Isaac of counsel), for respondent.

Concur—Acosta, P.J., Gische, Webber, González, JJ.

Defendant New Jersey Transit waived its sovereign immunity defense (see Belfand v Petosa, ___ AD3d ___, 2021 NY Slip Op 03522 [1st Dept 2021] [decided herewith]). It did not place plaintiff or the court on notice of the defense by asserting it in its responsive pleadings, during pretrial litigation, at trial or in its posttrial motion. Indeed, it raised the issue for the first time on appeal. As the defense pre-dates Franchise Tax Bd. of Cal. v Hyatt (587 US...

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