INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissenting opinion, determined the sovereign immunity defense raised for the first time on appeal by New Jersey in this traffic accident case was not preserved for appeal to the Court of Appeals. The accident happened in the Lincoln Tunnel and involved the New York resident plaintiff and a bus owned by the defendant New Jersey Transit Corporation. New Jersey argued that the US Supreme Court had changed the law in 2019, allowing a state to preclude suit in another state absent consent thereby presenting a constitutional issue not subject to the preservation requirement. The Court of Appeals rejected that argument:

The question before us is whether we have power to hear this appeal under NY Constitution article VI, § 3 and CPLR 5601 (b) (1). To answer this threshold issue, we must consider the jurisdictional nature of interstate sovereign immunity to ascertain whether defendants’ sovereign immunity defense is exempt from our general preservation rules. We conclude that a state must preserve its interstate sovereign immunity defense by raising it before the trial court, and no exception to the general preservation rule applies. Because defendants asserted their sovereign immunity defense for the first time on appeal after the United States Supreme Court decided Franchise Tax Bd. of Cal. v Hyatt (587 US &mdash, 139 S Ct 1485 [2019] [hereinafter Hyatt III]), the argument is unpreserved in this case and there is no directly involved constitutional question supporting this appeal as of right. The appeal should therefore be dismissed. Henry v New Jersey Tr. Corp., 2023 NY Slip Op 01466, CtApp 3-21-23

Practice Point: Interstate sovereign immunity means one state cannot be sued in the courts of another state absent consent. That form of sovereign immunity was validated by the US Supreme Court in 2019. The issue, however, must be preserved by raising it in the trial court before the Court of Appeals will consider it.