*1 15 ‐ 2181 ‐ cv(L) re: World Trade Center Lower Manhattan Disaster Site Litigation

In the

United States Court of Appeals

For the Second Circuit

August Term, 2016 Nos. 15 ‐ 2181 ‐ cv(L), 15 ‐ 2283 ‐ cv(Con), 15 ‐ 2285 ‐ cv(Con), ‐ ‐ cv(Con), ‐ ‐ cv(Con), 15 ‐ 2687 ‐ cv(Con) I N R E : W ORLD T RADE C ENTER

L OWER M ANHATTAN D ISASTER S ITE L ITIGATION

S TANISLAW F ALTYNOWICZ , L UCYNA F OREMSKA , R UBEN A COSTA , V LADMIR A KOULOV , W ALDEMAR B ALCER , J OAQUIN C AMPUZANO , H ENRYK C IBOROWSKI , J AN D OBROWOLSKI , M AREK G LOWATY , E UGENIUSZ J ASTRZEBOWSKI , Z BIGNIEW K UCHARSKI , M ARIA M ORENO ,

I RENA P ERZYNASKA , M ARIAN R ETELSKI , D ARIUSZ W SZOLKOWSKI , B OGUSLAW Z ALEWSKI , Plaintiffs ‐ Appellants , S TATE OF N EW Y ORK ,

Intervenor Appellant B ATTERY P ARK C ITY A UTHORITY ET AL ., Defendants Appellees.

S ANTIAGO A LVEAR , Plaintiff ‐ Appellant , S TATE OF N EW Y ORK , Intervenor ‐ Appellant ,

B ATTERY P ARK C ITY A UTHORITY , Defendant ‐ Appellee.

P ETER C URLEY , M ARY A NN C URLEY , Plaintiffs ‐ Appellants ,

S TATE OF N EW Y ORK ,

Intervenor Appellant B ATTERY P ARK C ITY A UTHORITY Defendant Appellee. 

Appeal from United States District Court Southern District York. No. MC — Alvin K. Hellerstein, Judge .

 Clerk directed amend caption set forth above.

A RGUED : O CTOBER 5, D ECIDED : J ANUARY 19, Before: L YNCH , D RONEY , Circuit Judges , R EISS Chief District Judge . ^[*]

Appeal from orders United States District Court for Southern District New York (Hellerstein, J. ) granting summary judgment favor Battery Park City Authority (“BPCA”). The district court held that BPCA, public benefit corporation, had capacity raise due process challenge under New York State Constitution New State statute that revived claims against corporations for personal injuries sustained during rescue, recovery, cleanup efforts that followed terrorist attacks September court further held violated BPCA’s due process rights under state constitution. This appeal followed. Because we conclude there insufficient New authority legal standards governing these issues, CERTIFY two questions Court Appeals.

G REGORY J. C ANNATA Gregory J. Cannata & Associates, LLP, York, York, for Plaintiffs ‐ Appellants Stanislaw Faltynowicz, Lucyna Foremska, Ruben Acosta,

Vladmir Akoulov, Waldemar Balcer, Joaquin Campuzano, Henryk Ciborowski, Jan Dobrowolski, Marek Glowaty, Eugeniusz Jastrzebowski, Zbigniew Kucharski, Maria Moreno, Irena Perzynaska, Marian Retelski, Dariusz Wszolkowski, Boguslaw Zalewski .

P AUL J. N APOLI (Michael Cohan, on brief ), Worby Groner Edelman & Napoli Bern, LLP, New York, New York, for Plaintiffs ‐ Appellants Santiago Alvear, Peter Curley, Mary Ann Curley . A NDREW W. A MEND Senior Assistant Solicitor General (Barbara D. Underwood, Steven C. Wu, Eric Del Pozo, on brief ), for Eric T. Schneiderman, Attorney General for State New York, New York, York, for Intervenor Appellant . J OHN M. F LANNERY (Eliza M. Scheibel, brief ), Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, York, Defendant Appellee Battery Park City Authority.

D RONEY , Circuit Judge :

This appeal requires us to determine whether Battery Park City Authority (“BPCA”), a public benefit corporation, has capacity to challenge a New York State claim ‐ revival statute unconstitutional under State Constitution, and whether challenge succeeds on merits. As we explain below, believe we cannot resolve those questions without first certifying two predicate questions to Appeals:

(1) Before State’s capacity to sue doctrine may be applied determine whether State ‐ created public benefit corporation has capacity challenge State statute, must first be determined whether benefit corporation “should be treated like State,” see Clark ‐ Fitzpatrick, Inc. v. Long Island R.R. Co. , 516 N.E.2d 190, 192 (N.Y. 1987), based “particularized inquiry into nature instrumentality claimed applicable it,” see John Grace & Co. v. Univ. Constr. Fund 375 N.E.2d (N.Y. 1978), if so, what considerations are relevant inquiry?; (2) Does “serious injustice” standard articulated Gallewski H. Hentz & Co. N.E.2d (N.Y. *6 1950), or the less stringent “reasonableness” standard articulated Robinson Robins Dry Dock & Repair Co. N.E. (N.Y. 1924), govern the merits of a due process challenge under New York State Constitution claim revival statute? Accordingly, CERTIFY these questions Appeals.

BACKGROUND

I. Battery Park City Authority Legislature decided address “substandard, insanitary, deteriorated and deteriorating conditions” affecting Manhattan’s Lower West Side. N.Y. Pub. Auth. Law § Accordingly, created BPCA and tasked it with “replanning, reconstructi[ng] and rehabilitati[ng]” area, significant participation private sector, “for prosperity welfare people city state whole.” Id. redevelopment was include creation mixed commercial residential community. id.

To accomplish this goal, BPCA was created as a public benefit corporation, ^[1] id. § 1973, and authorized to, inter alia “sue and sued,” “acquire, lease, hold, mortgage and dispose real property,” “fix, establish and collect rates, rentals, fees and other charges,” and “borrow money and issue negotiable bonds, notes or other obligations,” id. § 1974. BPCA maintains its own general fund, see id. § solely responsible repayment its bond obligations, see id. § It has seven members, each appointed Governor advice consent Senate. Id. § 1973(1).

BPCA has successfully developed 92 acre site—known as Battery Park City—into a community houses over million square feet commercial space, 13,500 residents, public schools, acres parks. Who We Are B ATTERY P ARK C ITY *8 A UTHORITY http://bpca.ny.gov/about/who ‐ ‐ are/ (last visited Jan. 13, 2017).

II. Plaintiffs’ Claims Against BPCA This consolidated appeal involves claims for personal injuries sustained by eighteen workers who participated large scale cleanup operations across Lower Manhattan following terrorist attacks September 11, years followed, these Plaintiffs developed host serious respiratory illnesses. Plaintiffs believe their illnesses stemmed from cleanup work they had performed at several BPCA owned properties impacted 9/11 attacks. Specifically, Plaintiffs believe they had been exposed harmful toxins result BPCA’s failure adequately ensure worker safety those sites. Consequently, between Plaintiffs filed personal injury suits against BPCA United States District Southern District York, asserting *9 1 claims under New York labor law and common ‐ law negligence. ^[2] 2 Plaintiffs’ suits, along with hundreds of others, were assigned 3 Judge Hellerstein and consolidated for pretrial purposes.

4 July 2009, the district court dismissed a substantial number 5 of these cases, including Plaintiffs’, for failure serve a timely 6 notice of claim upon certain public defendants required by New 7 York law. ^[3] Specifically, the district court dismissed more than 600 8 suits against BPCA, another 124 suits against other public and 9 municipal entities.

III. Jimmy Nolan’s Law wake these dismissals, Legislature enacted General Municipal Law § 50 ‐ i(4), known “Jimmy Nolan’s Law,” which revived for one year all time ‐ barred claims against corporations for personal injuries sustained workers who participated post 9/11 rescue, recovery, or cleanup efforts. N.Y. Gen. Mun. Law § i(4)(a). Legislature explained that “thousands World Trade Center workers ha[d] developed disabling respiratory illnesses other injuries at rates greatly exceed those general population,” those workers “should not denied their rights seek just compensation simply because they were provided incorrect information about their work conditions, did immediately recognize casual connection between their injuries their exposure, or were unaware applicable time limitations.” N.Y. Assembly Mem. Supp. Legislation, reprinted Bill Jacket A.B. Ch. 440, *11 (July 17, 2009). Following law’s enactment, many workers, including Plaintiffs, revived their claims against BPCA.

IV. BPCA’s Challenge Jimmy Nolan’s Law In August 2014, BPCA moved summary judgment against eight workers who had filed suit against BPCA pursuant Jimmy Nolan’s Law, challenging law as unconstitutional. BPCA contended, first, that had capacity raise such challenge despite its status benefit corporation, and, second, law violated its due process rights under State Constitution. The Attorney General State (hereinafter “Attorney General”) intervened defend law. district court (Hellerstein, J. ) agreed BPCA, granted summary judgment BPCA’s favor. In re World Trade Ctr. Lower Manhattan Disaster Site Litig. F. Supp. 3d (S.D.N.Y. 2014). so ruling, district court held BPCA an entity independent therefore has capacity *12 challenge constitutionality State statutes. Id. at 473. On merits, court held “Jimmy Nolan’s Law does fall within narrow exception revival statutes” under law, “unconstitutional under Due Process Clause Constitution, applied BPCA.” Id. 476.

On March 5, 2015, BPCA moved extend district court’s ruling an additional 171 workers, including Plaintiffs. Finding no relevant factual differences between those workers eight whose claims were previously dismissed, district court granted BPCA’s motion. re World Trade Ctr. Lower Manhattan Disaster Site Litig. No. MC 102 (S.D.N.Y. Apr. 13, 2015), ECF No. Plaintiffs Attorney General now appeal.

DISCUSSION

I. Standard Review We review de novo district court’s grant summary judgment. Matthews City F.3d (2d Cir. *13 2015). Summary judgment is proper only if “‘the movant shows there no genuine dispute as to any material fact and movant entitled to judgment matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). We also review de novo district court’s interpretation and application state law. Phansalkar v. Andersen Weinroth & Co. 344 F.3d 184, (2d Cir. 2003) (per curiam).

II. BPCA’s Capacity to Challenge Jimmy Nolan’s Law a. Capacity ‐ ‐ Sue Rule follows traditional capacity sue rule, which

states “municipalities and other local governmental corporate entities their officers lack capacity mount constitutional challenges acts State State legislation.” City N.E.2d (N.Y. 1995). Such entities are “purely creatures or agents State,” so “cannot have right contest actions their principal or creator affecting them their governmental capacity.” Id. other words, “political *14 power conferred Legislature confers no vested right against government itself.” Id. (quoting Black River Regulating Dist. Adirondack League Club N.E.2d (N.Y. 1954)). This rule also a “necessary outgrowth separation of powers doctrine: it expresses extreme reluctance courts intrude political relationships between Legislature, State its governmental subdivisions.” Id. has recognized four

exceptions this general rule: (1) where a public corporation has express statutory authorization bring suit; (2) where legislation adversely affects public corporation’s proprietary interest specific fund moneys; (3) where impinges upon “Home Rule” powers public corporation constitutionally guaranteed under article IX Constitution; (4) where corporation asserts that, if obliged *15 comply the statute, that very compliance will force the corporation violate constitutional proscription. id .

Resolution the issue whether BPCA may mount its constitutional challenge would thus seemingly involve straightforward application capacity ‐ sue rule its four recognized exceptions. However, BPCA asserts that, before this rule may be applied, two criteria must first be met: (1) must be determined public entity “should be treated like State,” determined “particularized inquiry into nature instrumentality statute claimed applicable it;” (2) must restrict public benefit corporation’s governmental powers. We address each criterion turn.

b. “Particularized Inquiry” Test Clark Fitzpatrick, Inc. Long Island Rail Road Co. recognized benefit corporations are political subdivisions “but rather enjoy, some *16 purposes, an existence separate apart from State.” 516 N.E.2d 190, (N.Y. 1987). Court explained “particularized inquiry” therefore “necessary determine whether—for specific purpose at issue—the public benefit corporation should be treated like State.” Id.

Consistent this framework, has considered whether public benefit corporation should “treated like State” purposes of, inter alia , receiving immunity from punitive damages, Id. 192–93, falling within scope prohibiting defrauding “state or any political subdivision thereof,” People v. Miller N.E.2d 297, 298–99 (N.Y. 1987) (internal quotation marks omitted), providing economic relief construction contracts, John Grace & Co. Univ. Constr. Fund N.E.2d 377–79 (N.Y. 1978).

It unclear whether courts have applied particularized inquiry test present context—that is, *17 determine whether a public benefit corporation should be treated like the State for the purpose having the capacity to raise a constitutional challenge to a State statute. Nonetheless, BPCA urges us to apply the particularized ‐ inquiry test here. Were we to do so, BPCA maintains, would conclude BPCA should not be treated like the State therefore not subject the bar imposed by capacity ‐ ‐ sue rule. ^[4] Indeed, district court concluded as much its opinion below. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig. 66 F. Supp. 3d 471–73.

In response, Attorney General argues that, although public benefit corporations may not be identical State every respect, they are indistinguishable from State purpose challenging statute. other words, Attorney General *18 contends that the capacity sue rule absolute, and does turn on a particularized inquiry into the particular functions or purposes corporation question. Rather, the “relevant dispositive factor” whether entity “remain[s] subject Legislature’s ongoing control.” Intervenor’s Reply Br. at 4.

The Attorney General asserts that these principles are plainly illustrated by Court Appeals’ decision Black River Regulating District Adirondack League Club . case, Black River Regulating District proposed plan build a reservoir dam Moose River regulate river flow, raised funds project issuing certificates indebtedness. Black River N.E.2d at 434. The Legislature later passed statute effectively barring project. Id. at 430. The District brought suit, challenging unconstitutional. Id. at 431. held District lacked power raise such challenge. Id.

The Court explained: A regulating district charged authority carry out the purpose is an agency of the State depending its existence and performing its functions subject control direction of the State. The number and nature of its powers are within State’s absolute discretion any alteration, impairment or destruction those powers by Legislature presents no question constitutionality. Id. at 432–33. The further reasoned that District had “no special character different from that State,” that its purpose was “a purpose,” that its “issuance certificates indebtedness [did] not confer upon [it] an independent status which [it has] standing.” Id. at Accordingly, District’s suit was barred. id.

Although Attorney General argues Black River precludes BPCA’s challenge, believe decision’s significance so clear. As an initial matter, not evident whether, time Court’s decision, District was “public benefit corporation” under law. District’s *20 enabling laws created “river regulating districts” as “public corporations,” and defined term as including “counties, towns, cities, villages, corporations created under this article all other governmental agencies clothed power levying general taxes.” N.Y. Envtl. Conserv. Law §§ 430(7), 431 (1915). law in effect in 1954, meanwhile, defined “public corporations” as including municipal corporations, district corporations, public benefit corporations, each which were defined separately. L.1941, ch. 460, § 3(1) (1941). Thus, cannot discern whether District was, relevant point time, public benefit corporation—as opposed municipal or district corporation—a fact potentially undermines Black River ’s significance present appeal. ^[5]

Even assuming the District was a public benefit corporation at time the Court’s decision, is not clear us that Black River altogether forecloses application particularized inquiry test. As described above, Court observed that District had “no special character” apart from that State, that its sole purpose was a “State purpose,” its financial authority conferred no independent standing. Black River N.E.2d at 434. This language inconsistent particularized inquiry test.

Our reading Black River further complicated by a later decision Patterson Carey . case, Jones Beach Parkway Authority, a public benefit corporation, financed new parkway through sale bonds, charged tolls parkway discharge its bond obligations. Patterson N.E.2d 1146, 1149–50 (N.Y. 1977) . Years later, Parkway Authority announced toll increase. Id. N.Y.S.2d (N.Y. App. Div. 2014) (characterizing District, its current incarnation, benefit corporation). *22 Legislature quickly enacted a statute suspending the increase.

Id. at 1150–51. Parkway Authority and the institutional trustee for the Authority’s bondholders filed suit against the to declare law unconstitutional. Id. at 1151. After concluding that Parkway Authority trustee had “sufficient standing” to bring suit, id. at n.*, Court of Appeals found unconstitutional, id. at 1151.

BPCA interprets Patterson holding that a “public benefit corporation has standing bring constitutional challenge to a state statute.” Appellee’s Br. It clear, though, Patterson should interpreted this way several reasons. First, Court of Appeals’ discussion standing relegated footnote; main text opinion concerns merits plaintiffs’ constitutional challenge makes no mention standing principles or capacity sue rule.

Second, both the Parkway Authority the institutional trustee for the bondholders served as plaintiffs. Accordingly, the Court had no need to consider whether the Parkway Authority, on its own, would have had the legal capacity to raise its challenge against the State. Indeed, concluding the plaintiffs had standing, the cited Jeter Ellenville Central School District , 360 N.E.2d 1086 (N.Y. 1977), apparently for the premise that, although entity might have “procedural standing” to participate suit challenging legislation, it nevertheless lacks the substantive right raise its own constitutional challenges. See Jeter , N.E.2d at 1088. This view is supported by Court’s merits discussion, which focuses on constitutional rights bondholders, not Park Authority. Patterson , N.E.2d at sue does not go jurisdiction court, as is case when plaintiffs lack standing.” City N.E.2d Thus, possible read Patterson ruling on capacity sue, lack which “is ground dismissal which must raised motion otherwise waived,” id. but rather jurisdictional standing, thus making case little relevance present appeal. *24 (holding that “the is arbitrary deprives bondholders contractual right without due process of law” (emphasis

added)).

Finally, although Court’s merits discussion reiterates principle “public authority enjoys an existence separate apart from State, even though exercises governmental function,” id. (internal quotation marks omitted), language speaks whether Legislature impermissibly infringed Comptroller’s exercise his discretionary power, separate from Court’s due process analysis, see id. Based on these considerations, we are disinclined read Patterson BPCA does. Nonetheless, Patterson adds additional uncertainty an already unsettled area state law. light foregoing, believe there an absence

definitive guidance question whether particularized ‐ inquiry test applies present context. To our knowledge, no *25 court has squarely addressed this question and, discussed above, other relevant law decisions are inconclusive. As result, we are unable to predict with confidence how would resolve this issue—a factor weighing in favor certification. Griffin Sirva Inc. F.3d 293–94 (2d Cir. 2016).

Moreover, it less than clear to us from caselaw how particularized inquiry, if required, be conducted. We understand such an inquiry focuses “the nature instrumentality” in conjunction “the claimed applicable it.” John Grace N.E.2d at However, given diversity types benefit corporations issues stake various cases in which such inquiries have been conducted, find difficult discern only whether law requires us conduct particularized inquiry, but also what such an inquiry would involve particular case before us.

c. Restriction on Governmental Powers BPCA also asserts that, capacity to sue rule to apply, at issue must restrict public entity’s governmental powers. Here, BPCA contends, Jimmy Nolan’s Law imposes no restrictions on BPCA’s delegated powers functions; rather, law merely addresses procedural prerequisites to litigation against all corporations. Accordingly, BPCA contends free to challenge law’s constitutionality.

This argument squarely foreclosed Appeals’ decision City State : [T]he municipal plaintiffs argue lack capacity sue doctrine only applies . . . statutory restrictions on municipality’s power . . . . This contention ignores our precedents which lack capacity sue has applied block challenges far wider variety actions having differing adverse impacts local governmental bodies their constituents. N.E.2d We therefore reject BPCA’s argument meritless.

III. The Constitutionality Jimmy Nolan’s Law On merits, BPCA argues that Jimmy Nolan’s Law violates its due process rights under State Constitution. ^[7] The Attorney General asserts that statute constitutional. Before we can resolve this issue, must first determine which legal standard applies when evaluating constitutionality revival statute. Robinson v. Robins Dry Dock & Repair Co. , Court examined constitutionality that revived for one year certain injured workers’ claims. See 144 N.E. 579, 580 (N.Y. 1924). The began by recognizing that situation was “accidentally produced”—the workers faced limitations bar because they had originally pursued claims under an alternative statutory scheme, which was later overturned U.S. Supreme Court. id. 580, Observing that disallowance *28 the workers’ claims would thus “deprive a plaintiff without fault of a cause of action based defendants’ wrong,” and noting that the revival statute imposed “no arbitrary deprivation” of the defendants’ rights, Court concluded that the statute was “reasonable” exercise of Legislature’s power declared statute constitutional. Id. at 582. Gallewski H. Hentz & Co. , Court of Appeals considered constitutionality of revival that provided redress

persons unable file claims virtue being residents Nazi ‐ occupied territories during World War II. Gallewski N.E.2d (N.Y. 1950). cited Robinson interpreted as “holding that Legislature may constitutionally revive personal cause action where circumstances are exceptional are such satisfy court serious injustice would result plaintiffs not guilty any fault if intention Legislature were effectuated.” Id. Applying test, *29 Court held statute at issue was “entirely proper.” Id. As Court explained, World War II caused an “upheaval of unparalleled magnitude” “thorough disruption of communication,” utterly preventing residents of occupied territories from filing claims in U.S. courts. Id. at 624–25. Allowing limitations periods run during such time, Court concluded, “would accord elementary notions justice fairness.” Id. at 625.

Finally, Hymowitz Eli Lilly & Co. Court addressed constitutionality statute revived for one year all actions injuries caused by drug diethylstilbestrol (“DES”). See Hymowitz N.E.2d (N.Y. 1989). Due latent nature DES injuries, many such suits were barred by applicable limitations, which accrued upon exposure toxic substance rather than discovery injury. id. at 1072–73. The Court began reciting “stringent,” “serious injustice” standard articulated Gallewski . Id. *30 next observed that a “less strict test” had been applied in other cases, cited the “reasonable[ness]” standard articulated Robinson . Id. Though faced these two differing standards, the concluded the revival statute question met “the highest standard” so found no need to “light upon a precise test.” Id.

Both BPCA the Attorney General acknowledge these complexities. Nonetheless, Attorney General asserts that, based on existing decisions, “New courts, if made to choose, would evaluate Jimmy Nolan’s Law under reasonableness standard.” Intervenor’s Br. 43. BPCA, meanwhile, insists *31 York courts have consistently applied “serious injustice” test. Appellee’s Br. at Indeed, district court below appears have adopted this more stringent test. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig. F. Supp. 3d at (describing revival statutes applicable “only in limited circumstances,” where “serious injustice” might otherwise result).

Faced two differing legal standards, we are unable determine which standard would apply. Griffin F.3d 293–94. question further complicated fact neither party has cited us, nor have found, any case which any state court has struck down any statute reviving expired claims. absence any caselaw applying any differing verbal formulations find such statute unconstitutional, difficult perceive whether various tests differ their concrete application, or under what circumstances would find revival *32 unconstitutional under any of proposed tests. We therefore turn next to issue of whether certification this question, well as preceding question, is appropriate.

IV. Certification Court of Appeals Pursuant Second Circuit Local Rule 27.2, may certify Court Appeals “determinative questions law are involved case pending before us which no controlling precedent exists.” Osterweil v. Bartlett F.3d 139, 142 (2d Cir. 2013) (internal quotation marks alterations omitted); see also Farm Mut. Auto. Ins. Co. Mallela F.3d (2d Cir. 2004) (deeming certification appropriate “where state law clear state courts have had little opportunity interpret it,” “where an unsettled question state law raises important issues policy,” “where question likely recur”).

Here, BPCA and the Attorney General contend New York law is sufficiently settled us resolve both legal questions. Nonetheless, the parties agree that, should this Court determine otherwise, certification is appropriate course. For the reasons described below, we believe legal questions presented by this case would more appropriately answered Court of Appeals.

Before certifying questions Court Appeals, must first answer three others: (1) “whether Court Appeals has addressed issue and, if not, whether decisions other courts permit us predict how would resolve it”; (2) “whether question importance state may require value judgments policy choices”; (3) “whether certified question determinative claim before us.” Griffin F.3d 293–94 (internal quotation marks omitted). *34 our view, all three factors weigh in favor of certification.

First, as described in detail in Parts II III, supra , believe there is an absence of authoritative guidance concerning both legal questions.

Second, these questions are plainly great importance State. Whether a benefit corporation such BPCA sufficiently independent from State may therefore raise constitutional challenge legislation involves competing policy concerns better addressed Appeals. Schoenefeld F.3d 470 (2d Cir. 2014) (asserting such policy concerns “should be ceded federal court appeals when unnecessary do so first instance”); see also City N.E.2d (observing “extreme reluctance courts intrude political relationships between Legislature, State[,] its governmental subdivisions”). Whether constitutionality revival should judged *35 under the “serious injustice standard” or more lenient “reasonableness” standard likewise requires series “value judgments policy choices.” Griffin F.3d

Finally, these questions are determinative present litigation. If particularized ‐ inquiry test applies, if BPCA is judged to be sufficiently independent from State, then traditional capacity to ‐ sue rule will not attach BPCA will be free to raise its constitutional challenge. However, if particularized ‐ inquiry test does apply, or if it applies but BPCA deemed be indistinguishable from State purpose challenging statute, then BPCA will be subject traditional capacity ‐ sue rule and—unless can prove it falls within one rule’s four limited exceptions—BPCA’s constitutional challenge will be dismissed. As merits BPCA’s due process challenge, legal standard which challenge judged will all *36 likelihood dictate the outcome of our analysis of the constitutionality Jimmy Nolan’s Law. light these considerations, certify the following questions to New York Court Appeals pursuant to Second Circuit Local Rule 27.2 and Rule 500.27:

(1) Before State’s capacity to ‐ sue doctrine may be applied to determine whether a State ‐ created public benefit corporation has capacity challenge a State statute, must first be determined whether benefit corporation “should be treated like State,” see Clark ‐ Fitzpatrick, Inc. v. Long Island R.R. Co. , 516 N.E.2d 190, 192 (N.Y. 1987), based “particularized inquiry into nature instrumentality claimed applicable it,” see John Grace & Co. v. State Univ. Constr. Fund , 375 N.E.2d 379 (N.Y. 1978), if so, what considerations are relevant inquiry?; (2) Does “serious injustice” standard articulated Gallewski v. H. Hentz & Co. N.E.2d 620 (N.Y. 1950), or less stringent “reasonableness” standard articulated Robinson Robins Dry Dock & Repair Co. N.E. (N.Y. 1924), govern merits due process challenge under Constitution claim revival statute? *37 In certifying these questions, we do bind the Court of Appeals to the particular questions stated. Rather, the Court of Appeals may expand these certified inquiries to address any further question of law as might relevant to the particular circumstances presented this appeal. particular, if Court of Appeals decides that particularized inquiry required with respect capacity sue issue, would welcome specific guidance, should Court wish provide it, as appropriate result inquiry this particular case. This panel retains jurisdiction will consider any issues remain appeal once Court Appeals has either provided us with its guidance or declined certification.

CONCLUSION

It hereby ORDERED Clerk this Court transmit Clerk this opinion our certificate, together complete set briefs record *38 1 filed this Court. parties shall bear equally any fees costs 2 may imposed 3 connection this certification.

Notes

[*] Chief Judge Christina Reiss, United States District District Vermont, sitting designation.

[1] law defines “public benefit corporation” “corporation organized construct or operate improvement wholly or partly within state, profits from which inure benefit this or other states, or people thereof.” N.Y. Gen. Constr. Law § 66(4).

[2] Plaintiffs filed suit Southern District of pursuant Air Transportation Safety System Stabilization Act, which vested court with “exclusive jurisdiction over all actions brought for any claim (including any claim loss of property, personal injury, or death) resulting from or relating terrorist related aircraft crashes of September 2001.” Pub. L. No. 107 ‐ 42, § 408(b)(3), 115 Stat. 230 (codified 49 U.S.C. § 40101 note). Unless inconsistent or preempted by federal law, law governs Plaintiffs’ claims. id. § 408(b)(2).

[3] Under law, a plaintiff filing a personal injury claim against a defendant must: (1) serve notice claim within ninety days claim’s accrual, N.Y. Gen. Mun. Law § e(1)(a); (2) file suit within three years claim’s accrual, N.Y. C.P.L.R. 214(5). A claim based on latent injury from exposure harmful substance accrues “on date discovery injury plaintiff or date when through exercise reasonable diligence injury should have been discovered, whichever earlier.” N.Y. C.P.L.R. ‐ c(3).

[4] We pause here note one ironies this case. On one hand, BPCA insists should treated like State, therefore may freely challenge Jimmy Nolan’s Law as unconstitutional. On other hand, BPCA has consistently invoked as defense York’s day notice ‐ ‐ claim rule—a protection available BPCA virtue its status corporation. N.Y. Gen. Mun. Law § e.

[5] Indeed, current enabling for river regulating districts again employs general term “public corporation,” provides that, purposes federal law, such districts are deemed municipal corporations. N.Y. Envtl. Conserv. Law §§ 2103(1), ‐ 2103(1 ‐ a). But see Hudson River ‐ Black River Regulating District N EW Y ORK S TATE , http://www.hrbrrd.com (last visited Jan. 2017) (District, its current incarnation, describing itself benefit corporation); N. Elec. Power Co. Hudson River Black River Regulating Dist.

[6] Indeed, has drawn distinction elsewhere between “standing” “capacity sue,” stating “[t]he issue lack capacity

[7] revival time barred claims does implicate federal due process protections. See, e.g. Stogner v. California , U.S. 607, 651, 653 (2003); Chase Sec. Corp. Donaldson U.S. (1945). Presumably reason, BPCA raises no federal constitutional claim, argues only Jimmy Nolan’s law conflicts Constitution.

[8] To further complicate our analysis, Legislature has since enacted new “discovery” rule account for “the latent effects of exposure any substance.” L.1986, ch. § rule provides: [A] claim or action personal injury . . . caused by latent effects exposure any substance or combination substances . . . shall deemed have accrued on date discovery injury plaintiff or date when through exercise reasonable diligence injury should have been discovered, whichever earlier. N.Y. C.P.L.R. c(3). To our knowledge, courts have yet address how this rule might affect analysis claim revival under either Robinson or Gallewski .