Appendix — New York State Thruway Authority v. Mancuso
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 524—August Term 1995
(Argued November 16, 1995 Decided June 13, 1996)
Docket No. 95-7443
FRANK MANCUSO; ELLEN MANCUSO, individually and
on behaif of their children, Deanna and Theresa
Mancuso; and F. MANCUSO BOAT YARD, INC., doing
business as Echo Bay Marina,
Plaintiffs-Appellees,
Ve
NEW YORK STATE THRUWAY AUTHORITY,
Defendant-Appellant,
THE CITY OF NEW ROCHELLE,
Defendant.
Before:
OAKES, MAHONEY, and WALKER,
Circuit Judges.
2a
Appeal from an order of the United States District
Court for the Southern District of New York (Brieant,
J.), reported at 909 F. Supp. 133 (S.D.N.Y. 1995), which
denied defendant’s motion for summary judgment.
Defendant New York State Thruway Authority argues
that it is immune from suit under the Eleventh
Amendment and that New York law bars plaintiffs’ state-
law claims.
Affirmed.
JOHN A. TARTAGLIA, White Plains, NY, for
Plaintiffs-Appellees.
JOHN J. SIPOS, New York, NY (Dennis C.
Vacco, Attorney General of the State of
New York, John H. Carley, Gordon J.
Johnson, Elizabeth A. Grisaru, New
York, NY, on the brief), for Defendant-
Appellant.
WALKER, Circuit Judge:
This appeal raises the question of whether defendant
New York State Thruway Authority (the “Thruway
Authority”) is immune from suit in federal court under
the Eleventh Amendment. The district court, in a memo-
randum and order, held that the Thruway Authority was
not immune and denied its motion for summary judg-
ment. See Mancuso v. New York State Thruway Auth.,
909 F. Supp. 133 (S.D.N.Y. 1995). The Thruway Author-
ity now appeals, arguing that it is entitled to Eleventh
3a
Amendment immunity under the “arm-of-the-state” doc-
trine. The Thruway Authority also raises several argu-
ments based on state law, including a defense that the
plaintiffs’ state law causes of action are barred by New
York principles of sovereign immunity.
BACKGROUND
This dispute arises out of the Thruway Authority’s
ownership and use of the North Avenue Drain, a storm
sewer that empties into Echo Bay in New Rochelle, New
York. The plaintiffs (the “Mancusos”) brought this
action against the Thruway Authority and the City of
New Rochelle, alleging that the defendants have violated
the Clean Water Act, 33 U.S.C. § 1251 et seg., by dis-
charging pollutants into Echo Bay through the North
Avenue Drain. In addition, the plaintiffs asserted state-
law causes of action for gross negligence, nuisance,
Strict liability, trespass and battery.
In May 1994, the defendants moved for summary
judgment. The Thruway Authority argued that it was
entitled to Eleventh Amendment immunity under the
arm-of-the-state doctrine. The Thruway Authority and
the City of New Rochelle both also contended that any
discharge from the North Avenue Drain had been
exempted from the Clean Water Act’s permit require-
ments and that the district court lacked Subject matter
jurisdiction over the Mancusos’ claims. The district
court denied both motions.
On appeal, the Thruway Authority urges its Eleventh
Amendment immunity defense. In addition, the Thruway
Authority argues that it is entitled to sovereign immunity
because the plaintiffs failed to give proper notice of this
Suit to the New York Attorney General. We affirm the
4a
district court’s rejection of the Eleventh Amendment and
State sovereign immunity arguments. The Thruway
Authority also raises several other defenses or limita-
tions as to the Mancusos’ state law causes of action,
which are not reviewable at this stage of the litigation.
DISCUSSION
I. Appellate Subject Matter Jurisdiction
A federal court of appeals generally only has juris-
diction to hear appeals from those “final decisions of the
district courts” that terminate an action. 28 U.S.C.
§ 1291. In some cases, however, the courts of appeals
may hear appeals prior to the termination of an action.
See, e.g., 28 U.S.C. § 1292. The Supreme Court, in
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
546 (1949), clarified that the courts of appeals also have
jurisdiction under § 1291 to hear appeals from that small
class of district court orders that “finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review
and too independent of the cause itself to require that
appellate consideration be deferred until the whole case
is adjudicated.”
The district court’s memorandum and order is not a
final decision that terminates the plaintiffs’ action
against the defendants, Cohen, 337 U.S. at 545-46, nor
are we granted jurisdiction to hear an appeal from that
order under any of the statutory exceptions, see 28
U.S.C. § 1292. Nonetheless, we have jurisdiction to hear
an immediate appeal from the portion of the district
court’s order that denies the Thruway Authority’s
Eleventh Amendment claim of immunity because it falls
Sa
Squarely within Cohen’s collateral order exception.
Puerto Rico Aqueduct & Sewer Auth. y. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993); Komlosi v. New York
State Office of Mental Retardation & Developmental
Disabilities, 64 F.3d 810, 815 (2d Cir. 1995).
Furthermore, we also have jurisdiction to hear the
Thruway Authority’s argument that it is immune from
the state law causes of action under New York law. In
Napolitano v. Flynn, 949 F.2d 617, 621 (2d Cir. 1991),
we held that we had jurisdiction to hear the appeal of
several police officers who contended that they were
immune from the plaintiff’s state law causes of action
under the Vermont law doctrine of qualified immunity.
We reasoned that because the state law claim of quali-
fied immunity, like its federal counterpart, was not “sim-
ply a defense to substantive liability,” but was “an
immunity from suit,” it fell within the Cohen exception.
Id. Here, the Thruway Authority argues that the Man-
cusos may not sue it because they failed to serve a copy
of the complaint on the New York Attorney General, as
required by § 11(a) of the New York Court of Claims
Act. We find that we have jurisdiction to hear this argu-
ment because it is both “separate from the merits of the
plaintiff[s’] action” and, if meritorious, would entitle the
Thruway Authority not to be subject to suit. Napolitano,
949 F.2d at 621; see Finnerty v. New York State Thruway
Auth., 75 N.Y.2d 721, 722-23 (1989); see also Blue v.
Koren, 72 F.3d 1075, 1080 n.1 (2d Cir. 1995) (order
denying qualified immunity defense as a matter of law
immediately appealable); Rodriguez v. Phillips, 66 F.3d
470, 475 (2d Cir. 1995) (same); Hill v. City of New York,
45 F.3d 653, 659-60 (2d Cir. 1995) (same).
We do not have jurisdiction, however, over the
Thruway Authority’s other defenses or limitations under
— ee
6a
state law to the Mancusos’ action that (1) the Thruway
Authority cannot be liable for punitive damages, (2) it
may not be subject to an injunction, and (3) it cannot be
subject to trial by jury. Although these arguments may
be separate from the merits of this action, the district
court’s failure to grant the Thruway Authority’s motion
for summary judgment on any of these grounds is not a
decision that is “effectively unreviewable if an appeal
has to await a final judgment.” Napolitano, 949 F.2d at
621. If the district court fails to uphold these defenses in
favor of the Thruway Authority and is in error in doing
so, the district court’s decision is eminently reviewable:
we will be able to order a bench trial or to strike that
part of a judgment ordering an injunction or awarding
punitive damages. If review occurs in the normal course,
no unremediable harm will befall the Thruway Author-
ity. Accordingly, we do not have jurisdiction to adjudi-
cate these defenses under the collateral order doctrine.
The Thruway Authority contends that we still may
reach these issues under the doctrine of pendent appel-
late jurisdiction. The Supreme Court, however, has
recently made clear that pendent appellate jurisdiction
should be exercised sparingly, if ever, by the courts of
appeals. In Swint v. Chambers County Commission, 115
S. Ct. 1203 (1995), the plaintiff brought suit against a
county under 42 U.S.C. § 1983 and the county sought
summary judgment on the ground that none of the indi-
viduals involved was a policy maker and hence the
county was not liable under Monell v. New York City
Department of Social Services, 436 U.S. 658, 694
(1978). The district court denied the county’s motion,
but the Eleventh Circuit, exercising pendent appellate
jurisdiction, reversed. The Supreme Court vacated the
Eleventh Circuit’s decision on the ground that the court
7a
of appeals lacked jurisdiction over the county’s claim.
Swint, 115 S. Ct. at 1208-12. Although the Court refused
to decide when, if ever, pendent appellate jurisdiction is
appropriate, it did state that there was no jurisdiction in
Swint because the county’s claim was not “inextricably
intertwined” with the other issues, nor was it “necessary
to ensure meaningful review” of those issues. Jd. at
1212. In this case, the Thruway Authority’s additional
state law defenses are neither inextricably intertwined
with, nor necessary to the resolution of, its immunity
claims. Therefore, we refuse to exercise pendent appel-
late jurisdiction over those issues.
Il. Eleventh Amendment
The Eleventh Amendment to the Constitution pro-
vides: “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. Although
the text of the amendment speaks only of suits against a
state by persons who are not citizens of that state, the
Supreme Court has interpreted the Eleventh Amendment
to extend to suits by all persons against a state in federal
court. Thus, in Hans v. Louisiana, 134 U.S. 1, 10-11
(1890), the Court rejected the idea that the Eleventh
Amendment allowed states, without their consent, to be
sued by their own citizens in federal court. The Court
noted that such a reading of the Eleventh Amendment
would create an “anomalous result” that would be “no
less startling and unexpected” than the Court’s decision
in Chisholm v. Georgia, 2 U.S. 419 (1793), the case that
led to the adoption of the Eleventh Amendment. Hans,
134 U.S. at 10-11.
8a
Of course, the Mancusos have not brought suit against
the State of New York, but instead against the Thruway
Authority, which was created by the state for the purpose
of constructing and operating a high-speed, limited-
access thruway spanning the state. The Mancusos’ deci-
sion to sue the Thruway Authority and not the state is
not the end of our Eleventh Amendment inquiry, but
simply the beginning, for that amendment also bars some
suits where “a State is not named a party to the action.”
Edelman v. Jordan, 415 U.S. 651, 663 (1974). Although
the Eleventh Amendment does not apply to suits against
counties, municipal corporations, and other political sub-
divisions, the Thruway Authority is entitled to immunity
if it can demonstrate that it is more like “an arm of the
State,” such as a state agency, than like “a municipal
corporation or other political subdivision.” Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977).
The jurisprudence over how to apply the arm-of-the-
State doctrine is, at best, confused. In Feeney v. Port
Authority Trans-Hudson Corporation, 873 F.2d 628,
630-31 (2d Cir. 1989), aff'd on other grounds, 495 U.S.
299 (1990), we considered six factors, derived from the
Supreme Court’s decision in Lake Country Estates, Inc.
v. Tahoe Regional Planning Agency, 440 U.S. 391
(1979), in deciding whether the Port Authority of New
York and New Jersey (the “Port Authority”), a bistate
entity created by an interstate compact between those
two states, was covered by the Eleventh Amendment: (1)
how the entity is referred to in the documents that cre-
ated it; (2) how the governing members of the entity are
appointed; (3) how the entity is funded; (4) whether the
entity’s function is traditionally one of local or state
government; (5) whether the state has a veto power over
9a
the entity’s actions; and (6) whether the entity’s obli-
gations are binding upon the state.
The Supreme Court again addressed the immunity of
bistate entities under the arm-of-the-state doctrine in
Hess v. Port Authority Trans-Hudson Corporation, 115
S. Ct. 394 (1994).' Justice Ginsburg, writing for the
Court, began by distinguishing bistate from other state-
created entities because “the integrity of the compacting
States [is not] compromised when the Compact Clause
entity is sued in federal court.” Jd. at 401. The Court
then discussed the factors that it had examined in Lake
Country, but found that those factors did not “all point
the same way.” /d. at 402. Under these circumstances.
the Court indicated that the Eleventh Amendment's twin
rationales—protecting the state’s fisc and dignity—
“remain our prime guide.” /d. at 404. The Court rejected
the Port Authority’s and the dissent’s argument that the
Eleventh Amendment inquiry should be determined only
by looking at the degree of control that New York and
New Jersey wielded over the Port Authority. /d.; see also
id. at 411 (O’Connor, J., dissenting). Instead, the Court
found that the Eleventh Amendment's central concern
was protecting state treasuries and that, under the facts
of Hess, the proper inquiry was “{i]f the expenditures of
the enterprise exceed receipts, is the State in fact obli-
gated to bear and pay the resulting indebtedness of the
enterprise?” Jd. at 406.
Although Hess involved a bistate entity, we never-
theless believe that it is the proper Starting place for our
Eleventh Amendment inquiry in this case. See Gray v.
Laws, 51 F.3d 426, 431 (4th Cir. 1995) (“[E]ssentially
The parties’ suggestions to the contrary notwithstanding, the
Supreme Court's decision in Seminole Tribe v. Florida. 116 S. Ct
1114 (1996), does not alter our analysis here.
10a
the same broad principles identified by the Court as rel-
evant in the multistate entity context apply also in deter-
mining whether, within a single state, a governmental
entity is ‘state’ or ‘local’ for purposes of the Eleventh
Amendment.”). Thus, following the Supreme Court’s
lead, we first look to the six Lake Country factors iden-
tified in Feeney. Only if those factors point in different
directions do we then turn to the next questions: (a) will
allowing the entity to be sued in federal court threaten
the integrity of the state? and (b) does it expose the state
treasury to risk? We remain mindful of the Supreme
Court’s emphasis that “the vulnerability of the State’s
purse [is] the most salient factor.” Hess, 115 S. Ct. at
404. If all the elements are evenly balanced, this concern
will control.
In this case, we find the six Feeney factors to be
evenly balanced. Turning to the first factor, we note that
the New York Legislature, in creating the Thruway
Authority, never referred to it as a “political subdivi-
sion.” Cf. Lake Country, 440 U.S. at 401 (bistate entity
referred to in its compact as a “political subdivision”).
The New York Legislature, however, declared that the
Thruway Authority is “a body corporate and politic con-
stituting a public corporation.” N.Y. Pub. Auth. L.
§ 352(1). Thus, we look to how the New York Legisla-
ture and the New York courts have interpreted that term.
The Legislature has used the phrase “body corporate
and politic” to refer to a wide variety of entities, some of
which we are certain would not be found to be arms of
the state. See, e.g,, N.Y. Pub. Auth. L. § 1120-c (Town of
Clifton Park Water Authority); id. § 1470-b (City of
Rome Parking Authority); id. § 1493-c (Albany Parking
Authority). On the other hand, the term has also been
used to refer to entities whose status under the Eleventh
lla
Amendment is far less certain. See, e.g., id. § 1263(1)(a)
(Metropolitan Transportation Authority); id. § 1677
(Dormitory Authority). This phrase does little to
advance our inquiry.
The phrase “public corporation” is similarly unhelp-
ful. Under New York law, a public corporation must be
either a “municipal corporation,” a “district corpora-
tion,” or a “public benefit corporation.” N.Y. Gen.
Constr. L. § 65(b). The Thruway Authority does not
seem to fit within the definition of either a municipal
corporation, defined to include “a county, city, town, vil-
lage and school district,” N.Y. Gen. Constr. L. § 66(2),
or a district corporation, defined as including “any ter-
ritorial division of the state . . . whether or not such ter-
ritorial division is expressly declared to be a body
corporate and politic,” id. § 66(3). Moreover, when the
State legislature has meant to create a “public benefit
corporation,” it has usually done so in explicit terms.
See, e.g., N.Y. Pub. Auth. L. §§ 1120-c, 1470-b, 1493-c.
Therefore, we are unable to discern what the legislature
meant by using the phrase “public corporation” to
describe the Thruway Authority.
New York state decisional law is also inconclusive in
determining the formal status of the Thruway Authority.
The Court of Appeals, in Easley vy. New York State
Thruway Authority, 1 N.Y.2d 374, 376 (1956), stated that
the Thruway Authority “is an arm or agency of the
State.” Three years later, the Court of Appeals was more
equivocal, noting that “[a]lthough created by the State
[the Thruway Authority is] independent and
autonomous, deliberately designed to be able to function
with a freedom and flexibility not permitted to an ordi-
nary State board, department or commission” and that
“there is a close relationship between the Thruway
12a
Authority and the State.” Plumbing, Heating, Piping &
Air Conditioning Contractors Ass'n v. New York State
Thruway Auth., 5 N.Y.2d 420, 423, 424 (1959). The
Appellate Division, in Mac Farland-Breakell Building
Corporation v. New York State Thruway Authority, 104
A.D.2d 139, 141 (3d Dep’t 1984), distinguished Easley
on the ground that the Court of Appeals had not used the
term “agency” as aterm of art, but was “merely holding
that [the Thruway Authority] performed a State function
to a sufficient degree to permit the Legislature to con-
stitutionally confer jurisdiction on the Court of Claims”
. Over actions brought against the Thruway Authority. The
Appellate Division concluded that because the Thruway
Authority is a “quasi-governmental bod[y] which [was]
created as [an] entit[y] separate from the State,” it is not
a “State agency” as that phrase is used in New York
State Finance Law § 145. /d.; see also Bird v. New York
State Thruway Auth., 8 A.D.2d 495, 496-97 (4th Dep't
1959) (Thruway Authority is a public corporation and
therefore not an integral part of state government).
Court of Appeals cases after Easley strengthen the
argument that the Thruway Authority, as a public cor-
poration or authority, is independent of the state. See,
e.g., Schulz v. State, 84 N.Y.2d 231, 246 (1994)
(“[T]here can be no question that—for the purposes of
contracting [its] own legally binding obligations—the
Thruway Authority [is a] public corporation[ ] existing
independently of the state.”), cert. denied, 115 S. Ct. 936
(1995); Collins v. Manhattan & Bronx Surface Transit
Operating Auth., 62 N.Y.2d 361, 368 (1984) (“[P]ublic
authorities [are] intended ‘to resemble in many respects
a private business corporation.’ ” (quoting 11 Report of
Constitutional Convention Committee, 1938, p. 238)).
However, these cases do not mention Easley, much less
13a
overrule it. Thus, taken as a whole, New York caselaw
neither plainly considers the Thruway Authority a tra-
ditional state agency nor treats it as a completely inde-
pendent corporation. Because the Legislature has
accorded the Thruway Authority some traditional state
powers, such as immunity from taxes, N.Y. Pub. Auth. L.
§ 371, and the ability to acquire property by eminent
domain, id. § 358, we think that the first Feeney factor
tips slightly in favor of Eleventh Amendment immunity.
Cf. Hess, 115 §. Ct. at 403 (Port Authority not labelled
as a State agency but state courts have treated it as an
agency and not a municipal unit or local district).
The second Feeney factor requires us to determine
who appoints the Thruway Authority’s members. This
factor is easier to apply than the first, and it favors a
finding of immunity: all three board members are
appointed by the Governor of New York with the advice
and consent of the state Senate. N.Y. Pub. Auth. L.
§ 352(1).
The next factor, how the Thruway Authority is funded,
weighs against immunity. No provision of New York law
requires the state to fund the Thruway Authority’s oper-
ations and the Thruway Authority points to only two cat-
egories of evidence to support its claim that it is not
self-funded: the state legislature’s decision at the time of
the Thruway Authority’s creation to guarantee its initial
bond offering, and several instances in which New York
has allocated funds to the Thruway Authority. However,
the arm-of-the-state doctrine focuses not on initial fund-
ing, but on current funding. See Ristow v. South Carolina
Ports Auth., 58 F.3d 1051, 1053 (4th Cir.), cert. denied.
116 S. Ct. 514 (1995). As far as we are aware, those ini-
tial bonds have long since been retired, and the state has
not guaranteed any other offerings. Furthermore, each
l4a
instance in which the state has allocated funds to the
Thruway Authority has involved an isolated project that
the Thruway Authority took on at the behest of the state.
Indeed, the limited nature of these instances of state
funding establish that in general the Thruway Authority
is self-funded.
The fourth factor, whether the entity’s fuction is tra-
ditionally one of state or local government, weighs in
favor of immunity. Although the construction and oper-
ation of roads and bridges may be viewed as either a
state or local function, see Hess, 115 S. Ct. at 403, the
thruway stretches across the entire state and, therefore,
the Thruway Authority performs a function that a state
would normally provide. The Thruway Authority also
operates New York’s canal system, which is a state, not
a local, function.
The fifth Feeney factor considers whether New York
State has a veto power over the Thruway Authority’s
actions. We have already noted, in our consideration of
the second factor, that the Governor appoints and the
Legislature confirms the three members of the Thruway
Authority. The members are appointed for nine year
terms, N.Y. Pub. Auth. L. § 352(1), and, once appointed,
their actions are essentially unreviewable either by other
State officers or by the Legislature. Unlike the states’
relationship to the Port Authority as described in Hess,
New York has no veto power over the Thruway Author-
ity’s actions. The Thruway Authority’s only obligation
to the state is to submit to the Governor, the Legislature,
and several other state officials an annual report out-
lining its operations and fiscal condition. See N.Y. Pub.
Auth. L. § 363. And, unlike the situation with the Port
Authority, the parties have not pointed to any provision
of New York law, and we are aware of none, that would
15a
allow either the Governor or the Legislature to remove
the Thruway Authority’s members prior to the expiration
of their terms. See Hess, 115 S. Ct. at 399.
The Thruway Authority contends that the fifth factor
weighs in favor of immunity because under New York
law the Thruway Authority is required to deposit all its
receipts with the state Comptroller and may only issue
bonds with the Comptroller’s permission. N.Y. Pub.
Auth. L. §§ 364, 365. The Court of Appeals has held,
however, that the monies deposited with the Comptroller
are not under the state’s control, see New York Pub.
Interest Research Group, Inc. v. New York State Thruway
Auth., 77 N.Y.2d 86, 92 (1990) (“NYPIRG”), and we are
aware of no provision that allows the Comptroller to
refuse to pay any of the Thruway Authority’s debts. The
New York Constitution expressly provides that the
Comptroller may review the accounts of all public cor-
porations. N.Y. Const. art. X, § 5. This power is entirely
discretionary and the Comptroller has no duty to super-
vise any public corporation. NYPIRG, 77 N.Y.2d at 90-
91. Similarly, we do not think that state control is
evidenced by the Comptroller’s responsibility to ensure
fiscal responsibility by the Thruway Authority before it
issues debt instruments. Accordingly, we find that the
fifth Feeney factor weighs against finding that the
Thruway Authority is covered by the Eleventh Amend-
ment.
The final factor, whether a judgment against the
Thruway Authority will place the state treasury at risk,
also weighs against finding immunity. As we noted
above, New York law expressly provides that “[t}he state
Shall be liable on notes or bonds guaranteed hereunder
but shall not be liable on notes or bonds not guaranteed
by the state which shall not be a debt of the state.” N.Y.
l6a
Pub. Auth. L. § 369. The New York Constitution limits
such guarantees to the initial construction of the
thruway, see N.Y. Const. art. X, § 6(a), and expressly
provides that the state shall not be liable for the obli-
gations of public corporations, such as the Thruway
Authority, see id. art. X, § 5. Thus, there can be no doubt
that the state is not legally obligated to pay for the
Thruway Authority’s debts. See Schulz, 84 N.Y.2d at
247.
But our inquiry as to the sixth Feeney factor does not
end simply because New York is not legally required to
pay the Thruway Authority’s debts; we must also ask
whether a judgment against the Thruway Authority
would have the practical effect of requiring payments
from New York. See Ristow, 58 F.3d at 1053. The
Thruway Authority has provided no evidence that it
would have any difficulty in satisfying a judgment in
this case, or in any other. Instead, the Thruway Authority
simply speculates that if the plaintiffs were to receive all
the damages they claim ($105 million), its financial sta-
bility would be threatened. But this differs little from the
Port Authority’s unsubstantiated claim in Hess that a
judgment against it would adversely impact the trea-
suries of New York and New Jersey. 115 S. Ct. at 405.
The reality is that the Thruway Authority is “structured,
[like] the Port Authority is, to be self-sustaining.” Jd.
Thus, we have no difficulty in concluding that any judg-
ment against the Thruway Authority in this case poses
no threat to the finances of New York.
With the six Feeney factors in equipoise, we turn to
the two purposes underlying the Eleventh Amendment—
protection against state liability and respect for state
sovereignty. In this case, the state treasury is not even
minimally at risk and the sole question remaining is
17a
whether suit in federal court will be an affront to the
dignity of New York State. See Hess, 115 S. Ct. at 401.
We believe that the state sovereignty concern weighs
neither in favor nor against Eleventh Amendment immu-
nity. New York law itself provides the same kind of
immunity to the Thruway Authority that it accords to the
State, subjecting it only to certain tort and breach of con-
tract claims, all of which must be brought in the Court of
Claims. See N.Y. Pub. Auth. L. § 361-b. Allowing the
Thruway Authority to be sued in federal court arguably
would interfere with this carefully limited scheme for
liability that New York has created. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 & n.9
(1984). The Thruway Authority, however, is not a tra-
ditional state agency, but a public entity that is generally
self-funded and, except for the appointment of its mem-
bers to nine-year terms, it is not under significant state
control. Although the Thruway Authority may be iden-
tified closely with the state, New York State has given
the Thruway Authority an existence quite independent
from the state and exercises the most minimal control
over the Thruway Authority. We are unable to conclude
that subjecting the Thruway Authority to suit in federal
court would be an affront to the dignity of New York.
Because the concern for state liability weighs against a
finding of immunity and because the concerns of state
sovereignty and dignity are not fully implicated, we hold
that the Thruway Authority is not entitled to Eleventh
Amendment immunity.
Our conclusion that the Thruway Authority is not
granted Eleventh Amendment immunity from suit in fed-
eral court accords with the Third Circuit’s view in
Christy v. Pennsylvania Turnpike Commission, 54 F.3d
1140 (3d Cir.), cert. denied, 116 S. Ct. 340 (1995), that
18a
the Pennsylvania Turnpike Commission (“PTC”) is sim-
ilarly not protected by the Eleventh Amendment. There
are some minor differences between the PTC and the
Thruway Authority, the most significant of which is that,
while the PTC did not enjoy sovereign immunity under
state law, id. at 1148, the Thruway Authority does,
Easley, 1 N.Y.2d at 376. This difference cuts in favor of
finding immunity for the Thruway Authority. On the
other hand, the Pennsylvania Secretary of Transportation
is also automatically a member of the PTC’s board,
Christy, 54 F.3d at 1149, which is not the case in New
York. On the whole, we do not think that these minor
differences between the PTC and the Thruway Authority
create any practical distinction in their status under the
Eleventh Amendment. Accordingly, we affirm that part
of the district court’s order that denied the Thruway
Authority’s motion to dismiss based on Eleventh
Amendment immunity.
Ill. State Immunity
The Thruway Authority repeats on appeal its argument
that the Mancusos’ state law claims must be dismissed
because they failed to serve both their notice of claim
letters and their complaint on the Attorney General. As
the Thruway Authority notes, § 11(a) of the Court of
Claims Act requires:
The claim shall be filed with the clerk of the
court; and, except in the case of a claim for the
appropriation by the state of lands, a copy shall be
served personally or by certified mail, return receipt
requested, upon the attorney general within the
times hereinbefore provided for filing with the clerk
of the court. . . . Service by certified mail, return
receipt requested, upon the attorney general shall
19a
not be complete until the claim or notice of inten-
tion is received in the office of the attorney general.
Personal service upon the attorney general shall be
made in the same manner as described in section
[307] of the civil practice law and rules.
N.Y. Ct. Cl. Act § 11(a). Failure to abide by these
requirements divests the Court of Claims of subject mat-
ter jurisdiction, and presumably also divests us of such
jurisdiction. See Finnerty, 75 N.Y.2d at 723. However,
§ 11(c) of the Court of Claims Act provides:
Any objection or defense based upon failure to
comply with (i) the time limitations contained in
section ten of this act, or (ii) the manner of service
requirements set forth in subdivision a of this sec-
tion is waived unless raised, with particularity,
either by a motion to dismiss made before service of
the responsive pleading is required or in the respon-
sive pleading, and if so waived the court shall not
dismiss the claim for such failure.
N.Y. Ct. Cl. Act § 11(c). We rea! this section as requir-
ing the Thruway Authority to assert, either before or in
its responsive pleading, any defense based on a plain-
tiff’s failure to serve the Attorney General. Because the
Thruway Authority’s answer did not assert a defense
based on § 11(a), that defense has been waived. Accord-
ingly, we affirm the district court on this issue as well.
CONCLUSION
For the reasons stated above, we affirm the district
court’s rejection of Eleventh Amendment immunity and
state law immunity to the Thruway Authority and we do
not decide the Thruway Authority’s other defenses,
which are beyond our jurisdiction.
20a
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
FRANK MANCUSO; ELLEN MANCUSO, individually and on
behalf of their children, Deanna and Theresa Mancuso;
and F. MANCUSO BOAT YARD, INC., doing business as
Echo Bay Marina,
Plaintiffs,
ae Ye
NEW YORK STATE THRUWAY AUTHORITY,
THE CITY OF NEW ROCHELLE,
Defendants.
OPINION OF THE DISTRICT COURT
BRIEANT, District Judge.
This is a citizen suit brought under Section 505 of the
Clean Water Act, 33 U.S.C. § 1365 (“the Act”, or the CWA).
Plaintiff Frank Mancuso was at relevant times the owner and
operator of Echo Bay Marina in New Rochelle, New York (the
“Marina”). Plaintiff Ellen Mancuso is the wife of Frank Man-
cuso who worked at the Marina. Plaintiffs Deanna and
Theresa Mancuso are the children of Frank and Ellen Man-
cuso who allegedly played at the Echo Bay Marina at all
times relevant to this lawsuit.
Plaintiffs allege that the defendants have unlawfully vio-
lated the Act by discharging pollutants into Echo Bay through
a point source known as the “North Avenue Drain”, damaging
plaintiffs’ property and causing physical injury. The pollu-
tants allegedly flow into Echo Bay through the “North Avenue
2la
Drain”, a storm sewer which was constructed by and belongs
to defendant New York State Thruway Authority (“NYSTA”).
Plaintiffs allege further that defendant City of New Rochelle
(the “City”) has illegal storm and Sanitary sewer connections
to the North Avenue Drain which also bring pollutants into
Echo Bay Marina. Plaintiffs have also pleaded supplemental
claims for nuisance, trespass, negligence and intentional toxic
tort. They seek monetary damages and an injunction pre-
venting future unlawful discharges.
By motions filed May 3, 1994 and May 4, 1994 the City
and NYSTA moved for summary judgment. The Court heard
oral argument on June 24, 1994. NYSTA moved principally
on the ground that it is an “Arm of the State” entitled to
Eleventh Amendment immunity from suit in federal court.
NYSTA also contends, as does the City, that it only dis-
charged “stormwater” from the North Avenue Drain, a
discharge which was exempt from the Act’s permit require-
ment during the relevant period of this lawsuit. Both defen-
dants also argue that plaintiffs have not complied with the
Act's notice requirements, and therefore the court lacks sub-
ject matter jurisdiction, and there are other arguments made
by the defendants. After careful consideration the Court
denies both defendants’ motions for summary judgment.
In this case the plaintiffs seek monetary damages for
alleged past harm as well as prospective injunctive relief. The
Eleventh Amendment prohibits a suit from being brought
against a State or its agencies in federal court unless the State
consents to be sued or unless Congress unequivocally abro-
gates the immunity. An exception to the Eleventh Amend-
ment’s grant of sovereign immunity allows a suit to be
brought against the State for prospective injunctive relief
of a continuing violation of federal law. Ex Parte Young, 209
U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This Court
has the jurisdiction and power to enjoin NYSTA from future
violation of the CWA if at trial it is found to be in violation.
Plaintiffs seek such injunctive relief to Stop the pollution.
22a
Since a non-frivolous demand for injunctive relief is suf-
ficient to answer the Eleventh Amendment jurisdictional issue
in order to dispose of this motion, it is probably not necessary
for the Court to consider whether NYSTA is amenable to a
damage award notwithstanding the Eleventh Amendment, if
it has caused or permitted an unlawful discharge through the
North Avenue Drain. Because the progress of this litigation
may benefit from consideration of the issue at this time, the
Court now expresses a view that damages can in fact be
awarded against NYSTA upon a proper evidentiary showing
at trial.
NYSTA is not the State of New York. It is merely a public
authority created pursuant to statute by the State Legisla-
ture. It is governed by a board, as set forth in § 352 of the
New York Public Authorities Law, consisting of members
appointed for nine year terms and therefore independent of
the Legislature and Governor. By § 361-b of the New York
Public Authorities Law the Legislature has directed that all
awards and judgments against NYSTA shall be paid out of
moneys of the Authority. Accordingly, these plaintiffs, should
they prevail, will receive nothing from the State treasury.
The foregoing facts concerning NYSTA are sufficient with-
out more to resolve the issue of Eleventh Amendment immu-
nity in favor of plaintiffs. The prior jurisprudence in the
Supreme Court on the subject of the Eleventh Amendment has
been recast and simplified in the recent decision of Hess v.
Port Authority Trans-Hudson Corporation, U.S. .
115 S.Ct. 394, 130 L.Ed.2d 245 (1994). As is so often found
in Supreme Court jurisprudence, the significance of that deci-
sion is best elicited from the dissenting opinion of Justice
O’ Connor:
“{I]n place of the various factors recognized in Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U.S. 391, 99 S.Ct. 1171, 59 L Ed.2d 401 (1979), for
determining arm-of-the-state status, we may now sub-
stitute a single overriding criterion, vulnerability of the
state treasury. If a State does not fund judgments against
23a
an entity, that entity is not within the ambit of the
Eleventh Amendment and suits in federal court may
proceed unimpeded. By the Court's reckoning, the
State treasury is not implicated on these facts. Neither, it
follows, is the Eleventh Amendment.” /d. eS
, 115 S.Ct. at 408.
In the instant case the State Treasury is not implicated by
any awards against NYSTA, which will have to be paid out of
the toll and concession revenues of its substantial highway
network. Furthermore, since the governance of the Thruway
is in the hands of an independent board established by the
State, the “dignity of the State” discussed in passing in Hess,
Supra, as one of the twin reasons for Eleventh Amendment
immunity is also not implicated. The dignity of NYSTA is no
different than the dignity of a County government established
by the State to perform a particular local function. It is well
known that Counties do not enjoy Eleventh Amendment
immunity. Feeney v. Port Authority Trans-Hudson Corpora-
tion, 873 F.2d 628, 630 (2d Cir. 1989), aff'd on other
grounds, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264
(1990) ([t]he Court has consistently refused to construe the
[Eleventh] Amendment to afford protection to political sub-
divisions such as counties and municipalities, even though
such entities exercise a “slice of state power.”).
Indeed, even before the most recent assault on Eleventh
Amendment immunity found in Hess, supra, this Court would
find no Eleventh Amendment immunity, at least on federal
question issues. Kohlasch v. New York State Thruway Author-
ity, 460 F.Supp. 956 (S.D.N.Y. 1978). See also, Zeidner vy.
Wulforst, 197 F.Supp. 23 (E.D.N.Y. 1961) (Eleventh Amend-
ment immunity available to NYSTA ina diversity suit).
Both defendants also urge the Court to dismiss the plain-
tiffs’ CWA claims for failure to comply with the citizen suit
provision of the Act which requires that citizens give notice
of a claim, prior to filing suit, to the alleged violator as well
as federal and state regulatory agencies. 33 U.S.C. § 1365(b).
The primary purpose of the notice requirement is to inform
24a
federal and state agencies of the claimed violation, thereby
providing them with an opportunity to take their own enforce-
ment and remedial action if so advised.
Substantial compliance with the Act’s notice requirements
is all that is required. Kitlutsisti v. Arco Alaska, Inc., 592
F.Supp. 832 (D.C. Alaska, 1984), appeal dismissed, vacated
on other grounds, 782 F.2d 800. In this case notices were sent
to the regional office of the United States Environmental Pro-
tection Agency (EPA), the New York State Department of
Environmental Conservation (DEC), and the defendants. The
notices were adequate to provide defendants with “sufficient
information to permit the recipient to identify the specific
standard . . . alleged to have been violated, the activity
alleged to constitute the violation, the location of the alleged
violation, the date or dates of such violation, and the full
name, address, and telephone number of the person giving
notice.” 40 C.F.R. § 135.3(a). The first notice letters dated
July 2, 1992 sent to the defendants contained a report from
Materials and Environmental Technologies (“M & E”), an
environmental consulting firm, describing in detail the alleged
pollution discharging from the North Avenue Drain. While the
subsequent formal notices of July 29, 1992 did not contain the
M & E report, which is 24 pages in length, the defendants had
actual notice of the specific violations alleged (discharge of
specified pollutants without a permit), the person or persons
responsible (the defendants), the location of the alleged vio-
lations, and that the discharge was continuous Thus, the
defendants and necessary government agencies received ade-
quate notice of the alleged violations of the Act, and the
Court need not dismiss on that ground.
The Court has carefully considered the remaining argu-
ments raised both by defendant NYSTA and the City in sup-
port of their respective motions for summary judgment. Both
motions are denied. There are substantial questions of fact
which prevent resolution of this case on the present submis-
sions to the Court. By way of illustration rather than exhaus-
tion of the voluminous record before the Court, the Court
perceives the following disputed issues of fact.
25a ;
First, NYSTA and the City of New Rochelle argue that
there has been no violation of the Clean Water Act because
the Act does not require a permit for discharges “composed
entirely of stormwater.” 33 U.S.C. § 1342(p). Defendants con-
tend that the North Avenue Drain has no Sanitary sewage con-
nections and thus the discharges are entirely stormwater,
substantially or entirely from the thruway. (NYSTA Memo-
randum in Support, p. 59) Plaintiffs deny this and assert that
there are in fact direct connections of Sanitary sewage into the
North Avenue Drain. (Plaintiffs’ Memorandum in Opposition,
p. 35; Plaintiffs’ Rule 3(g) statement, p. 2).
Without being able to resolve the disputed issue of whether
the City has constructed or permitted illegal sanitary sewage
connections to the North Avenue Drain or has permitted them
to exist after notice, the Court is unable to determine whether
the Clean Water Act’s exemption for discharges composed
entirely of stormwater is applicable. Whether this storm sewer
System serves a population of more than 100,000 may also be
disputed, and may determine the applicability of the CWA’s
§ 1342(p) exceptions to the permit requirement for storm
water.
The motions are denied.
SO ORDERED.
26a
SELECTED PROVISIONS OF THE STATE CONSTITUTION
AND CERTAIN STATE STATUTES
CONSTITUTION OF THE STATE OF NEW YORK
ARTICLE X—CORPORATIONS
§ 5. [Public corporations; restrictions on creation and powers;
accounts; obligations of]
No public corporation (other than a county, city, town, vil-
lage, school district or fire district or an improvement district
established in a town or towns) possessing both the power to
contract indebtedness and the power to collect rentals,
charges, rates or fees for the services or facilities furnished or
supplied by it shall hereafter be created except by special act
of the legislature.
No such public corporation (other than a county or city)
shall hereafter be given both the power to contract indebt-
edness and the power, within any city, to collect rentals,
charges, rates or fees from the owners of real estate, or the
occupants of real estate (other than the occupants of premises
owned or controlled by such corporation or by the state or any
civil division thereof), for services or facilities furnished or
supplied in connection with such real estate, if such services
or facilities are of a character or nature then or formerly fur-
nished or supplied by the city, unless the electors of the city
shall approve the granting to such corporation of such pow-
ers by a majority vote at a general or special election in such
city; but this paragraph shall not apply to a corporation
created pursuant to an interstate compact.
The accounts of every such public corporation heretofore or
hereafter created shall be subject to the supervision of the
state comptroller, or, if the member or members of such pub-
lic corporation are appointed by the mayor of a city, to the
supervision of the comptroller of such city; provided, how-
ever, that this provision shall not apply to such a public cor-
poration created pursuant to agreement or compact with
27a
another state or with a foreign power, except with the consent
of the parties to such agreement or compact.
Neither ihe state nor any political subdivision thereof shall]
at any time be liable for the payment of any obligations issued
by such a public corporation heretofore or hereafter created,
nor may the legislature accept, authorize acceptance of or
impose such liability upon the state or any political subdivi-
sion thereof; but the state or a political subdivision thereof
may, if authorized by the legislature, acquire the properties of
any such corporation and pay the indebtedness thereof.
§ 6. [Liability of state for payment of bonds of public cor-
porations to construct state thruways; use of state canal
lands and properties by such corporation]
Notwithstanding any provision of this or any other article
of this constitution, the legislature may by law, which shall]
take effect without submission to the people:
(a) make or authorize making the state liable for the pay-
ment of the principal of and interest on bonds of a public cor-
poration created to construct state thruways, in a principal
amount not to exceed five hundred million dollars, maturing
in not to exceed forty years after their respective dates, and
for the payment of the principal of and interest on notes of
such corporation issued in anticipation of such bonds, which
notes and any renewals thereof shall mature within five years
after the respective dates of such notes; and
(b) authorize the use of any state canal lands and properties
by such a public corporation for so long as the law may pro-
vide. To the extent payment is not otherwise made or pro-
vided for, the provisions of section sixteen of article seven
Shall apply to the liability of the state incurred pursuant to
this section, but the powers conferred by this section shall not
be subject to the limitations of this or any other article.
28a
ARTICLE XV—CANALS
§ 1. [Disposition of canals and canal properties prohibited]
The legislature shall not sell, abandon or otherwise dispose
of the now existing or future improved barge canal, the divi-
sions of which are the Erie canal, the Oswego canal, the
Champlain canal, and the Cayuga and Seneca canals, or of the
terminals constructed as part of the barge canal system; nor
shall it sell, abandon or otherwise dispose of any portion of
the canal system existing prior to the barge canal improve-
ment which portion forms a part of, or functions as a part of,
the present barge canal system; but such canals and terminals
shall remain the property of the state and under its manage-
ment and control forever. This prohibition shall not prevent
the legislature, by appropriate laws, from authorizing the
granting of revocable permits or leases for periods of time as
authorized by the legislature for the occupancy or use of such
lands or structures.
§ 2. [Prohibition inapplicable to lands and properties no
longer useful; disposition authorized]
The prohibition of sale, abandonment or other disposition
contained in section one of this article shall not apply to barge
canal lands, barge canal terminals or barge canal terminal
lands which have or may become no longer necessary or use-
ful for canal or terminal purposes; nor to any canal lands and
appertaining structures constituting the canal system prior to
the barge canal improvement which have or may become no
longer necessary or useful in conjunction with the now exist-
ing barge canal. The legislature may by appropriate legisla-
tion authorize the sale, exchange, abandonment or other
disposition of any barge canal lands, barge canal terminals,
barge canal terminal lands or other canal lands and apper-
taining structures which have or may become no longer nec-
essary or useful as a part of the barge canal system, as an aid
to navigation thereon, or for barge canal terminal purposes.
29a
§ 3. [No tolls to be imposed; contracts for work and materi-
als; no extra compensation]
All boats navigating the canals and the Owners and masters
thereof, shall be subject to such laws and regulations as have
been or may hereafter be enacted concerning the navigation of
the canals. The legislature shall annually make provision for
the expenses of the superintendence and repairs of the canals,
and may provide for the improvement of the canals in such
manner as shall be provided by law notwithstanding the cre-
ation of a speciai revenue fund as provided in this section. All
contracts for work or materials on any canal shall be made
with the persons who shall offer to do or provide the same at
the lowest responsible price, with adequate security for their
performance as provided by law.
All funds that may be derived from any sale or other dis-
position of any barge canal lands, barge canal terminals, barge
canal terminal lands or other canal lands and appertaining
Structures and any other funds collected for the use of the
canals or canal lands shall be paid into a special revenue fund
of the treasury. Such funds shall only be expended for the
maintenance, construction, reconstruction, development or
promotion of the canal, canal lands, or lands adjacent to the
canal as provided by law.
§ 4. [Lease or transfer of barge canal and terminals and facil-
ities to federal government]
Notwithstanding the prohibition of sale, abandonment or
other disposition contained in section one of this article, the
legislature may authorize by law the lease or transfer to the
federal government of the barge canal, consisting of the Erie,
Oswego, Champlain, Cayuga and Seneca divisions and the
barge canal terminals and facilities for purposes of operation,
improvement and inclusion in the national System of inland
waterways. Such lease or transfer to the federal government
for the purposes specified herein may be made upon such
terms and conditions as the legislature may determine with or
without compensation to the state. Nothing contained herein
30a
shall prevent the legislature from providing annual appro-
priations for the state’s share, if any, of the cost of operation,
maintenance and improvement of the barge canal, the divi-
sions thereof, terminals and facilities in the event of the trans-
fer of the barge cana! in whole to the federal government
whether by lease or transfer.
The legislature, in determining the state’s share of the
annual cost of operation, maintenance and improvement of the
barge canal, the several divisions, terminals and facilities,
shall give consideration and evaluate the benefits derived
from the barge canal for purposes of flood control, conser-
vation and utilization of water resources.
STATE FINANCE LAW
§ 88-b. Suburban transportation fund
1. There is hereby established in the joint custody of the
commissioner of taxation and finance and the comptroller a
fund to be known as the “suburban transportation fund”.
2. The suburban transportation fund shall consist of mon-
eys from the commuter railroad account of the metropolitan
transportation authority special assistance fund required to be
paid by such authority to the suburban transportation fund
pursuant to subdivision three of section twelve hundred sev-
enty-a of the public authorities law and any moneys from the
metropolitan transportation authority Dutchess, Orange and
Rockland fund transferred pursuant to subdivision four of sec-
tion twelve hundred seventy-a of the public authorities law.
3. Moneys in the suburban transportation fund shall be kept
separate from and shall not be commingled with any other
moneys in the custody of the commissioner of taxation and
finance and the comptroller. All deposits of such money shall,
if required by the comptroller, be secured by obligations of
the United States or of the state of market value equal at all
times to the amount of the deposit and all banks and trust
companies are authorized to give such securities for such
deposits.
3la
4. Moneys of the fund shall be made available for financ-
ing any of the following types of Capital projects within the
counties comprising the metropolitan commuter transportation
district, except those counties comprising the city of New
York, but only to the extent that such projects are on an
adopted transportation plan and approved by a designated
transportation coordinating committee, if one exists, or by the
metropolitan planning organization as created pursuant to
section fifteen-a of the transportation law if no designated
transportation coordinating committee exists: Capacity and
infrastructure improvements to State, county, town, city, vil-
lage roads, highways, parkways and bridges; or State, county,
town, city or village mass transportation projects; provided,
however, that in Nassau and Suffolk counties such moneys
shall be available only for capacity improvements to state
roads, highways, parkways and bridges. The amount of state
funds historically appropriated statewide, other than bond
funds, for transportation capital purposes from other sources
Shall not be reduced because of the availability of such mon-
eys made available pursuant to this Chapter, nor shall such
moneys be used to match federal aid. Prior to the allocation of
State advance funds appropriated pursuant to this section, the
municipality responsible for the project shail certify to the
commissioner of transportation that the amount of funds
appropriated for transportation Capital purposes by that
municipality shall not be reduced because of the availability
of such state advance funds. and that such moneys shall not
be used to match federal aid.
The designated transportation coordinating committee, if
one exists, or the metropolitan planning organization if no
designated transportation coordinating committee exists, shall
notify the municipalities within its jurisdiction of which pro-
jects it has approved.
5. In the event that any county withdraws from the metro-
politan commuter transportation district, the withdrawing
county shall pay to the state comptroller any amount that is
required so that the state is fully reimbursed for funds
32a
advanced in anticipation of reimbursement from the suburban
transportation fund. In the event that any withdrawing county
shall fail to make a payment pursuant to this subdivision, the
state comptroller shall withhold and pay to the capital pro-
jects fund an amount equal to the amount owed from the next
general or specific state aid payment and scheduled to be paid
to that county.
6. Moneys in the suburban transportation fund transferred
pursuant to section twelve hundred seventy-a of the public
authorities law shall be made available to the state department
of transportation for capital projects in the counties of
Nassau, Suffolk, Westchester, Putnam, Dutchess, Orange and
Rockland on the basis of each county’s average pro rata share
of the mortgage recording tax receipts raised in such counties
pursuant to subdivision one of section two hundred sixty-one
of the tax law during the period January first, nineteen hun-
dred eighty-four through December thirty-first, nineteen hun-
dred eighty-six as certified by the metropolitan transportation
authority. Moneys transferred to the suburban transportation
fund at the request of Dutchess, Orange or Rockland county
pursuant to subdivision three of section twelve hundred sev-
enty-b of the public authorities law shall be used by the state
department of transportation to increase the proportionate
share of such capital projects in such county. Such projects
shall be financed by means of a state advance to be reim-
bursed by the New York state thruway authority, or its suc-
cessor agency, through the issuance of its bonds or notes in
the manner set forth in subdivision seven of this section, or by
means of a state advance to be reimbursed directly from the
suburban transportation fund.
7. (a) For projects funded by the suburban transportation
fund, the state department of transportation may enter into an
agreement with the New York state thruway authority, or its
successor agency, for the purpose of having the thruway
authority, or its successor agency, issue bonds or notes to pay
33a
the capital costs of such project. Such agreement shall be sub-
ject to approval by the director of the division of the budget.
(b) For projects funded pursuant to this subdivision, the
affected municipality shall enter into an agreement with the
department of transportation for the conveyance of all
affected real property including highways, roads and bridges
to the thruway authority, or its successor agency, for the term
of the bonds or notes issued by the thruway authority, or its
successor agency, for such project or for such lesser period
that such bonds or notes are outstanding. During the period of
such conveyance to the thruway authority, or its successor
agency, the department of transportation or the municipality
shall agree to maintain the facility in a state of good repair,
the responsibility for which shall be with the state, or munic-
ipality, which had jurisdiction over said facility prior to such
agreement.
(c) Upon the final retirement of all bonds and notes issued
by the thruway authority, or its successor agency, for such
purpose, such property shall automatically revert to the con-
veying entity.
8. Payments to the thruway authority, or its successor
agency, pursuant to this section shall be subject to appropri-
ation from the suburban transportation fund. The thruway
authority, or its successor agency, shall utilize such moneys
to pay the debt service on such bonds or notes and to meet
administrative costs in connection therewith.
§ 89. Emergency highway reconditioning and preservation
fund
1. There is hereby established in the joint custody of the
commissioner of taxation and finance and the comptroller, a
Special account to be known as the “emergency highway
reconditioning and preservation fund”.
2. (a) Twenty-five percentum of the moneys received by
the department of taxation and finance pursuant to the pro-
34a
visions of section two hundred eighty-two-c and two hundred
eighty-four-c of the tax law as added to such law by chapter
four of the laws of nineteen hundred seventy-two after the
thirtieth day of September, nineteen hundred seventy-two,
shall be deposited by the commissioner of taxation and
finance to the credit of the emergency highway recondition-
ing and preservation fund.
(b) The additional twelve and one-half per centum of the
money received by the department of taxation and finance
pursuan’ to the provisions of sections two hundred eighty-
two-c and two hundred eighty-four-c of the tax law after April
first, nineteen hundred ninety, shall be deposited by the com-
missioner of taxation and finance to the credit of the reserve
account hereby established in the emergency highway recon-
ditioning and preservation fund.
(c) The additional twelve and one-half per centum of the
moneys received by the department of taxation and finance
pursuant to the provisions of sections two hundred eighty-
two-c and two hundred eighty-four-c of the tax law after April
first, nineteen hundred ninety-one, the four and one. sixth per
centum of the moneys received by the department of taxation
and finance pursuant to the provisions of sections two hun-
dred eighty-two-b and two hundred eighty-four-a of the tax
law after April first, nineteen hundred ninety-one, and the
additional eight and one-third per centum of the moneys
received by the department of taxation and finance pursuant
to such provisions on or after April first, nineteen hundred
ninety-two shall be deposited by the commissioner of taxation
and finance to the credit of the reserve account of the emer-
gency highway reconditioning and preservation fund.
3. Moneys in the emergency highway reconditioning and
preservation fund shall be kept separate and shall not be com-
mingled with any other moneys in the custody of the com-
missioner of taxation and finance and the comptroller. All
deposits of such moneys shall, if required by the comptroller,
be secured by obligations of the United States or of the state
35a
of market value equal at all times to the amount of the deposit
and all banks and trust companies are authorized to give such
securities for such deposits.
4. Subject to the terms of any agreement between the com-
missioner of transportation and the New York state thruway
authority, any such moneys in the emergency highway recon-
ditioning and preservation fund may, in the discretion of the
comptroller, be invested by the comptroller in obligations of
the United States or the state or obligations the principal and
interest of which are guaranteed by the United States or the
State.
5. The commissioner of taxation and finance and the
comptroller shall at all times maintain on deposit in the emer-
gency highway reconditioning and preservation fund the
aggregate amount of money needed by the department of
transportation during the next succeeding twelve calendar
months to comply in full with all obligations of the depart-
ment of transportation under the terms of every cooperative
highway contractual agreement of the department of trans-
portation with the New York state thruway authority, which is
then in effect, including without limitation by the specifica-
tion thereof, (i) the amount needed to make cooperative high-
way contractual agreement payments thereunder during such
year, and (ii) the amount needed to establish and maintain
reserves thereunder during such year; provided, however, that
if the commissioner of taxation and finance has entered into
an agreement with the director of the budget after April first,
nineteen hundred ninety-one providing for the repayment of
all or any portion of moneys transferred from the fund estab-
lished by this section to the general fund during any fiscal
year, and an appropriation is available from the general fund
to make such repayment, the commissioner of taxation and
finance and the comptroller shall not be required to maintain
on deposit in the fund established by this section the amount
needed by the commissioner of transportation during the next
succeeding twelve months to comply with every cooperative
36a
highway contractual agreement entered into after April first,
nineteen hundred ninety-one.
6. (a) The commissioner of taxation and finance and the
comptroller shall from time to time but in no event later than
the last day of March, June, September and December of each
year pay over and deposit to the credit of the general fund of
the state of New York, all moneys in the emergency highway
reconditioning and preservation fund in excess of the aggre-
gate amount of money required to be maintained in the emer-
gency highway reconditioning and preservation fund pursuant
to subdivision five of this section. Prior to making any such
transfer, the commissioner of taxation and finance and the
comptroller shall make and deliver to the director of the bud-
get, the commissioner of transportation and the New York
State thruway authority a certificate stating the aggregate
amount to be maintained on deposit in the emergency high-
way reconditioning and preservation fund to comply in full
with the provisions of subdivision five of this section.
(b) Unless otherwise provided in the terms of any coop-
erative highway contractual agreement of the department of
transportation with the New York state thruway authority
entered into on or after April first, nineteen hundred ninety
which is then in effect, the commissioner of taxation and
finance and the comptroller shall, on dates established under
the terms of any cooperative highway contractual agreement
of the department of transportation with the New York state
thruway authority entered into on or after April first, nineteen
hundred ninety which is then in effect, pay over and deposit
to the credit of the general fund of the state of New York, all
moneys in the emergency highway reconditioning and preser-
vation fund reserve account transferred thereto pursuant to
paragraph (b) of subdivision five of section three hundred
seventy-six of the public authorities law.
7. To secure the payment, subject to legislative appropri-
ation, of any money due or to become due in any year under
any cooperative highway contractual agreement entered into
37a
between the commissioner of Iransportation and the New York
State thruway authority, the commissioner of taxation and
finance and the comptroller may pledge or assign to the New
York State thruway authority, all or any moneys in the emer-
gency highway reconditioning and preservation fund estab-
lished pursuant to this Section, and further, to additionally
secure the payment, subject to legislative appropriation, of
any money due or to become due in any year under any coop-
erative highway contractual agreement entered into between
the commissioner of transportation and the New York State
thruway authority on or after April first, nineteen hundred
ninety, the commissioner of taxation and finance and the
comptroller may additionally pledge or assign to the New
York State thruway authority, all or any money in the emer-
gency highway reconditioning and preservation fund reserve
account established pursuant to this section. and any and all
moneys which may be received by the commissioner of tax-
ation and finance and the comptroller and credited to such
emergency highway reconditioning and preservation fund and
such reserve account therein in the future, and any right, title
and interest of the commissioner of taxation and finance and
the comptroller in and to the money in or to be deposited in
such emergency highway reconditioning and preservation
fund and such reserve account therein.
8. The moneys in such fund shall be appropriated and paid
out on check or checks signed by the commissioner of taxa-
tion and finance and the comptroller on the certification of the
chairman of the New York state thruway authority or such
other officer or employee or officers or employees as such
commissioner, such comptroller and such chairman shall
authorize to make such requisitions.
§ 89-a. Emergency highway construction and reconstruction
fund
1. There is hereby established in the joint custody of the
commissioner of taxation and finance and the comptroller, a
38a
specia] account to be known as the “emergency highway con-
struction and reconstruction fund”.
2. (a) Twenty-five percentum of the moneys received by
the department of taxation and finance pursuant to the pro-
visions of sections two hundred eighty-two-c and two hundred
eighty-four-c of the tax law after the first day of April, nine-
teen hundred eighty-three, shall be deposited by the com-
missioner of taxation and finance to the credit of the
emergency highway construction and reconstruction fund.
(b) The additional twelve and one-half per centum of the
moneys received by the department of taxation and finance
pursuant to the provisions of sections two hundred eighty-
two-c and two hundred eighty-four-c of the tax law after April
first, nineteen hundred ninety, shall be deposited by the com-
missioner of taxation and finance to the credit of the reserve
account hereby established in the emergency highway con-
struction and reconstruction fund.
(c) The additional twelve and one-half per centum of the
moneys received by the department of taxation and finance
pursuant to the provisions of sections two hundred eighty-
two-c and two hundred eighty-four-c of the tax law after April
first, nineteen hundred ninety-one, the four and one-sixth per
centum of the moneys received by the department of taxation
and finance pursuant to the provisions of sections two hun-
dred eighty-two-b and two hundred eighty-four-a of the tax
law after April first, hineteen hundred ninety-one, and the
additional eight and one-third per centum of the moneys
received by the department of taxation and finance pursuant
to such provisions on or after April first, nineteen hundred
ninety-two shall be deposited by the commissioner of taxation
and finance to the credit of the reserve account of the emer-
gency highway construction and reconstruction fund.
3. Moneys in the emergency highway construction and
reconstruction fund shall be kept separate and shall not be
commingled with any other moneys in the custody of the
commissioner of taxation and finance and the comptroller. All
then Ee ae
39a
deposits of such moneys shall, if required by the comptroller,
be secured by obligations of the United States or of the state
of market value equal at all times to the amount of the deposit
and all banks and trust companies are authorized to give such
securities for such deposits.
4. Subject to the terms of any agreement between the com-
missioner of transportation and the New York State thruway
authority, any such moneys in the emergency highway con-
struction and reconstruction fund may, in the discretion of the
comptroller, be invested by the comptroller in obligations of
the United States or the state or obligations the principal and
interest of which are guaranteed by the United States or the
State.
5. The commissioner of taxation and finance and the
comptroller shall at all times maintain on deposit in the emer-
gency highway construction and reconstruction fund the
aggregate amount of money needed by the department of
transportation during the next succeeding twelve calendar
months to comply in full with all obligations of the depart-
ment of transportation under the terms of every cooperative
highway contractual agreement of the department of trans-
portation with the New York state thruway authority, for the
design, acquisition, construction or reconstruction of state
highways, state parkways, state arterial highways in cities and
related facilities and structures pursuant to section three hun-
dred seventy-six of the public authorities law, which is then
in effect, including without limitation by the specification
thereof, (i) the amount needed to make cooperative highway
contractual agreement payments thereunder during such year,
and (ii) the amount needed to establish and maintain reserves
thereunder during such year; provided, however, that if the
commissioner of taxation and finance has entered into an
agreement with the director of the budget providing for the
repayment of all cr any portion of moneys transferred from
the fund established by this section to the general fund during
any fiscal year, and an appropriation is available from the
40a
general fund to make such repayment, the commissioner of
taxation and finance and the comptroller shall not be required
to maintain on deposit in the fund established by this section
the amount needed by the commissioner of transportation dur-
ing the next succeeding twelve months to comply with every
cooperative highway contractual agreement.
6. (a) The commissioner of taxation and finance and the
comptroller shall from time to time but in no event later than
the last day of March, June, September and December of each
year pay over and deposit to the credit of the general fund of
the state of New York, all moneys in the emergency highway
construction and reconstruction fund in excess of the aggre-
gate amount of money required to be maintained in the emer-
gency highway construction and reconstruction fund pursuant
to subdivision five of this section. Prior to making any such
transfer, the commissioner of taxation and finance and the
comptroller shall make and deliver to the director of the bud-
get, the commissioner of transportation and the New York
state thruway authority a certificate stating the aggregate
amount to be maintained on deposit in the emergency high-
way construction and reconstruction fund to comply in full
with the provisions of subdivision five of this section.
(b) Unless otherwise provided in the terms of any coop-
erative highway contractual agreement of the department of
transportation with the New York state thruway authority
entered into on or after April first, nineteen hundred ninety
which is then in effect, the commissioner of taxation and
finance and the comptroller shall, on the dates established
under the terms of any cooperative highway contractual
agreement of the department of transportation with the New
York state thruway authority entered into on or after April
first, nineteen hundred ninety which is then in effect, pay over
and deposit to the credit of the general fund of the state of
New York, all moneys in the emergency highway construction
and reconstruction fund reserve account transferred thereto
pursuant to paragraph (b) of subdivision five of section three
hundred seventy-six of the public authorities law.
|S ee eR ee Te ee
i--
s POR oe | «
4la
7. To secure the payment, subject to legislative appropri-
ation, of any money due or to become due in any year under
any cooperative highway contractual agreement entered into
between the commissioner of transportation and the New York
State thruway authority, the commissioner of taxation and
finance and the comptroller may pledge or assign to the New
York State thruway authority, all or any moneys in the emer-
gency highway construction and reconstruction fund estab-
lished pursuant to this section, and further, to additionally
secure the payment, subject to legislative appropriation, of
any money due or to become due in any year under any coop-
erative highway contractual agreement entered into between
the commissioner of transportation and the New York State
thruway authority on or after April first, nineteen hundred
ninety, the commissioner of taxation and finance and the
comptroller may additionally pledge or assign to the New
York state thruway authority, all or any moneys in the emer-
gency highway construction and reconstruction fund reserve
account established pursuant to this section, and any and all
moneys which may be received by the commissioner of tax-
ation and finance and the comptroller and credited to such
emergency highway construction and reconstruction fund and
the reserve account therein in the future, and any right, title
and interest of the commissioner of taxation and finance and
the comptroller in and to the money in or to be deposited in
such emergency highway construction and reconstruction fund
and the reserve account therein.
8. The monies in such fund Shall be appropriated and paid
out on check or checks Signed by the commissioner of taxa-
tion and finance and the comptroller on the certification of the
chairman of the New York State thruway authority or such
other officer or employee or officers or employees as such
commissioner, such comptroller and such chairman shall
authorize to make such requisitions.
42a
§ 89-b. Dedicated highway and bridge trust fund
1. There is hereby established in the joint custody of the
state comptroller and the commissioner of taxation and
finance a special fund to be known as the “dedicated highway
and bridge trust fund”.
2. The dedicated highway and bridge trust fund shall con-
sist of two accounts: (a) the special obligation reserve and
payment account; and (b) the highway and bridge capital
account. Moneys in each account shall be kept separate and
not commingled with any other moneys in the custody of the
comptroller.
3. (a) The special obligation reserve and payment account
shall consist of all moneys required to be deposited in the
dedicated highway and bridge trust fund pursuant to the pro-
visions of sections two hundred eighty-nine-e, three hundred
one-j and five hundred fifteen of the tax law, section four
hundred one of the vehicle and traffic law, and section thirty-
one of this chapter which amends this sentence, and any other
moneys collected therefor or credited or transferred thereto
from any other fund, account or source.
(b) Moneys in the special obligation reserve and payment
account shall, following appropriation by the legislature, be
used to pay amounts due to the New York state thruway
authority as dedicated highway and bridge trust fund coop-
erative agreement payments pursuant to the provisions of ded- |
icated highway and bridge trust fund cooperative agreements
entered into between the authority and the department of
transportation pursuant to sections ten-e, ten-f, and ten-g of
the highway law, the provisions of section three hundred
eighty-five of the public authorities law, and pursuant to the
provisions of this section.
(c) The comptroller is hereby authorized and directed to
transfer monthly no later than the last day of each month, any
moneys, if any, in excess of the aggregate amounts required
to be set aside in order to meet the requirements established
sancti aia
ore ae ee
43a
in paragraph (d) of this subdivision, to the highway and
bridge capital account, provided however that in no event
Shall such transfers occur unless and until the aggregate of all
dedicated highway and bridge trust fund cooperative agree-
ment payments certified to the comptroller for such fiscal
year shall have been appropriated in accordance with the pro-
visions of this section. Additionally, in no event shall the
comptroller pay over and distribute any revenues of the fund
to any person other than the New York state thruway author-
ity if any payment required to be set aside pursuant to para-
graph (b) of this subdivision has not been made to the
authority on the date by which it was required to have been
made pursuant to such schedule: provided, however, that no
person, including such authority or the holders of its bonds or
notes shall have any lien on such revenues and such agree-
ment shall be executory only to the extent of such revenues
available to the state in such fund.
(d) Upon receipt by the comptroller of a certificate or cer-
tificates from the chairperson of the New York state thruway
authority submitted pursuant to section three hundred eighty-
five of the public authorities law, that such authority requires
a4 payment or payments, from the dedicated highway and
bridge trust fund, the comptroller shall pay from such fund
pursuant to an appropriation on or before the fifteenth day of
any month preceding the payment as the chairperson thereof
may direct in any such certificate, the amount or amounts so
certified. The chairperson of such authority shall furnish the
commissioner of taxation and finance with copies of such cer-
tificates. In order to set aside the moneys necessary to meet
the amounts required on the payment date or dates herein,
the comptroller shall comply with the provisions of this
subdivision.
(e) Except for the purpose of meeting a dedicated highway
and bridge trust fund cooperative agreement payment required
pursuant to section three hundred eighty-five of the public
authorities law that is due on a monthly basis or more fre-
44a
quently, prior to transferring any moneys from the account
pursuant to paragraph (c) of this subdivision, the comptroller
shall set aside on a monthly basis all revenues deposited pur-
suant to this subdivision as received until the amount set aside
is equal to, twenty percent of the interest due on such obli-
gations on the next succeeding interest payment date multi-
plied by the number of months from the date of the last such
payment and ten percent of the next principal installment due
on such obligations multiplied by the number of months from
the date of the last such principal installment where principal
is due on an annual basis or twenty percent of the next prin-
cipal installment due on such obligations multiplied by the
number of months from the date of the last such principal
installment where principal is due on a semiannual basis. For
the purpose of meeting a required dedicated highway and
bridge trust fund cooperative agreement payment that is due
on a monthly basis or more frequently, the comptroller shall
set aside all revenues deposited pursuant to subdivision two
of this section as received until the amount so set aside is, in
the reasonable judgment of the comptroller, sufficient to pay
the required highway and bridge trust fund cooperative agree-
ment payment on or before such payment date. In no event
shall the comptroller be held liable for the failure to set aside
an amount sufficient to pay the required dedicated highway
and bridge trust fund cooperative agreement payment to the
authority.
(f) In the event that the amount set aside by the comptroller
pursuant to paragraph (e) of this subdivision is not sufficient
to meet the dedicated highway and bridge trust fund cooper-
ative agreement payments required pursuant to a certificate or
certificates submitted by the chairperson pursuant to subdi-
vision two of section three hundred eighty-five of the public
authorities law, the comptroller shall immediately transfer
first from the highway and bridge capital account, and then,
if necessary, from the general fund to the special obligation
reserve and payment account, an amount which, when com-
bined with the amount set aside pursuant to paragraph (e) of
PERI ip ian Shs 5
oa
a SNe Dea ors ie
45a
this subdivision, shall be sufficient to make the dedicated
highway and bridge trust fund cooperative agreement pay-
ments required pursuant to such certificate or certificates.
Following such an event, the comptroller shall, immediately
set aside the amounts required pursuant to paragraph (e) of
this subdivision, set aside and pay the next moneys received
by the special obligation reserve and payment account to
reimburse the general fund for moneys which were transferred
to the special obligation reserve and payment account pur-
suant to this paragraph. Such amounts shall be set aside until
the full amount of moneys transferred from the general fund
Shall have been set aside and any such moneys set aside shall
be transferred to the general fund no later than the last day of
each month.
4. The highway and bridge capital account shall consist of
all moneys transferred from the special obligation reserve and
Payment account and any other moneys credited or transferred
thereto from any other fund, account or source.
5. a. Moneys in the dedicated highway and bridge trust
fund shall, following appropriation by the legislature, be uti-
lized for: reconstruction, replacement, reconditioning, restora-
tion, rehabilitation and preservation of highways, parkways,
and bridges thereon, to restore such facilities to their intended
functions; construction, reconstruction, enhancement and
improvement of highways, parkways, and bridges thereon, to
address current and Projected capacity problems including
costs for traffic mitigation activities; aviation projects autho-
rized pursuant to section fourteen-j of the transportation law
and for payments to the general debt service fund of amounts
equal to amounts required for service contract payments
related to aviation projects as provided and authorized by sec-
tion three hundred eighty-six of the public authorities law;
programs to assist small and minority and women-owned
firms engaged in transportation construction and recon-
Struction projects, including a revolving fund for working
Capital loans, and a bonding guarantee assistance program in
46a
accordance with provisions of this chapter; matching federal
grants or apportionments to the state for highway, parkway
and bridge capital projects; the acquisition of real property
and interests therein required or expected to be required in
connection with such projects; preventive maintenance activ-
ities necessary to ensure that highways, parkways and bridges
meet or exceed their optimum useful life; costs of engineer-
ing and administrative services of the department of trans-
portation, including but not limited to fringe benefits; the
contract services provided by private firms in accordance with
section fourteen of the transportation law; personal services
and nonpersonal services, for activities including but not lim-
ited to the preparation of designs, plans, specifications and
estimates; construction management and supervision activi-
ties; costs of appraisals, surveys, testing and environmental
impact statements for transportation projects; expenses in
connection with buildings, equipment and facilities used or
useful in connection with the maintenance, operation, and
repair of highways, parkways and bridges thereon; and the
payment of debt service required on any bonds, notes or other
obligations and related expenses for highway, parkway and
bridge purposes authorized on or after the effective date of
this section. Beginning with disbursements made on and after
the first day of April, nineteen hundred ninety-three, morieys
in such fund shall be available to pay such costs or expenses
made pursuant to appropriations or reappropriations made
during the state fiscal year which began on the first of April,
nineteen hundred ninety-two. Beginning the first day of April,
nineteen hundred ninety-three, moneys in such fund shall also
be used for payments to the general debt service fund of
amounts equal to amounts required for service contract pay-
ments as provided and authorized by section three hundred
eighty of the public authorities law and by section eleven of
chapter three hundred twenty-nine of the laws of nineteen
hundred ninety-one, as amended.
b. Subject to appropriation therefor and subject to subdi-
vision four of this section, beginning the first day of April,
CREAN apa:
BPM ELL AIR
Fi fee Bs (Se AS:
47a
nineteen hundred ninety-three, an amount of moneys in the
dedicated highway and bridge trust fund, together with any
other moneys legally available therefor, which is equivalent
to the amount that was historically appropriated from state
sources, other than proceeds from the accelerated capacity
and transportation improvements of the nineties bond act, for
highway, parkway and bridge purposes as enumerated in para-
graph a of this subdivision shall be used to fund highway,
parkway and bridge expenditures that were historically appro-
priated from state sources, other than proceeds from the
accelerated capacity and transportation improvements of the
nineties bond act, for the purposes enumerated in paragraph
a of this subdivision.
6. All payments of moneys from the dedicated highway
and bridge trust fund shall be made on audit and warrant of
the comptroller.
§ 92-u. New York state canal system development fund
1. Pursuant to article fifteen of the State constitution, there
is hereby established in the joint custody of the state
comptroller and the commissioner of taxation and finance a
special revenue fund to be known as the “New York state
canal system development fund”.
2. Such fund shall consist of all revenues received from the
operation of the New York state canal System as defined in
section three hundred fifty-one of the public authorities law
and section two of the canal law, including payments on
leases for use of canal lands, terminals and terminal lands,
tolls received for lock and lift bridge passage, payments for
hydroelectric easements and Sales, for purchase of other aban-
doned canal lands, payments for any permits and leases for
use of the water and lands of the System and payments for use
of dry docks and other moneys made available to the fund
from any other source other than a grant, loan or other inter-
corporate transfer of funds of the New York state thruway
authority, and any itcome earned by, or incremental to, the
48a
fund due to investment thereof, or any repayment of any mon-
eys advanced by the fund.
3. Moneys in the New York state canal system develop-
ment fund may be invested by the comptroller pursuant to
section ninety-eight-a of this article, and any income received
by the comptroller shall be added to and become a part of,
and shall be used for the purposes of such fund.
4. The moneys held in or credited to the fund shall be
expended for the purposes set forth in this section, and may
not be interchanged or commingled with any other account or
fund but may be commingled with any other fund or account
for investment purposes.
5. Moneys of the fund, following appropriation by the leg-
islature, shall be available to the New York state thruway
authority and shall be expended by such authority or sub-
sidiary corporation thereof only for the maintenance, con-
struction, reconstruction, development or promotion of the
canal system; provided, however, that in the initial years,
expenditures of moneys of the fund for the development
and/or promotion of the canal system shall be accorded a pri-
ority by the authority or subsidiary corporation thereof. Mon-
eys shall be paid out of the fund by the state comptroller on
certificates issued by the director of the budget.
COURT OF CLAIMS ACT
§ 8. Waiver of immunity from liability
The state hereby waives its immunity from liability and
action and hereby assumes liability and consents to have the
same determined in accordance with the same rules of law as
applied to actions in the supreme court against individuals
or corporations, provided the claimant complies with the
limitations of this article. Nothing herein contained shall be
construed to affect, alter or repeal any provision of the work-
men’s compensation law.
49a
§ 9. Jurisdiction and powers of the court
The court shall have jurisdiction:
1. To hear and determine all matters now pending in the
said court of claims.
2. To hear and determine a claim of any person, corpora-
tion or municipality against the state for the appropriation of
any real or personal property or any interest therein, for the
breach of contract, express or implied, or for the torts of its
officers or employees while acting as such officers or employ-
ees, providing the claimant complies with the limitations of
this article. For the purposes of this act only, a real property
tax lien shall be deemed to be an interest in real property.
2-a. To hear and determine a claim of any person, corpo-
ration or municipality, against the state for the torts of mem-
bers of the organized militia and the employees in the division
of military and naval affairs of the executive department, pro-
viding that the claim is encompassed by the waiver of immu-
nity and assumption of liability contained in section eight-a
of this chapter, and providing, further, that the claimant com-
plies with the limitations of this article.
3. To hear and determine any claim in favor of the state
against the claimant, or against his assignor at the time of the
assignment.
3-a. To hear and determine the claim for damages against
the state for unjust conviction and imprisonment pursuant to
section eight-b of this article.
4. To render judgment in favor of the claimant or the state
for such sum as should be paid by or to the state.
5. To order two or more claims growing out of the same set
of facts to be tried or heard together, with or without con-
solidation, whenever it can be done without prejudice to a
substantial right.
50a
6. To order the interpleader of other parties known or
unknown whenever necessary for a complete determination of
the claim or counterclaim.
7. To provide for the perpetuation of testimony.
8. To open defaults; to vacate, amend, correct, or modify
any process, claim, order or judgment, in furtherance of jus-
tice for any error in form or substance; before entry of judg-
ment, to reopen a trial and permit submission of further
evidence; to grant a new trial upon any grounds for which a
new trial may be granted in the supreme court.
9. To establish rules for the government of the court and
the regulation of practice therein and to prescribe the forms
of procedure before it, in furtherance of the provisions of this
act and not inconsistent with law, and except as otherwise
provided by this act or by rules of this court or the civil prac-
tice law and rules, the practice shall be the same as in the
supreme court.
9-a. To make a declaratory judgment as defined in section
three thousand one of the civil practice law and rules with
respect to any controversy involving the obligation of an
insurer to indemnify or defend a defendant in any action
pending in the court of claims, provided that the court shall
have no jurisdiction to enter a judgment against an insurer
pursuant to this subdivision either: (i) for money damages; or,
(ii) if the insurer would otherwise have a right to a jury trial
of the controversy with respect to which the declaratory judg-
ment is sought.
10. To provide for the regular or special sessions of the
court, for such terms and at such places as it may determine
and to prepare the calendar of cases therefor.
11. The court and the judges shall have all of the powers
necessary to carry out properly the jurisdiction granted and
the duties imposed by this act.
Sla
12. To hear and determine Special proceedings for the dis-
tribution of moneys deposited pursuant to subdivision (E) of
section three hundred four of the eminent domain procedure
law.
§ 12. Conditions of judgment
1. In no case shall any hability be implied against the state.
No judgment shall be granted on any claim against the state
except upon such legal evidence as would establish liability
against an individual or corporation in a court of law or
equity.
2. No judgment shall be awarded to any claimant on any
claim which, as between citizens of the state, would be barred
by lapse of time.
3. Claims shall be heard and judgments thereon rendered
by one judge, provided, however, that the presiding judge
may order any claim or claims to be heard or determined by
more than one judge, but not more than three judges, in which
event the judgments thereon shall be rendered upon the con-
currence of two judges. All intermediate applications and
motions may be heard and determined by one judge.
4. Before any judgment shall be rendered for appropriation
of land, the value of which exceeds five thousand dollars the
judge rendering or one of the judges concurring in the judg-
ment shall view the premises affected thereby.
PUBLIC AUTHORITIES LAW
TITLE 9—NEW YORK STATE THRUWAY AUTHORITY
§ 350. Short title
This title may be cited as “New York State thruway author-
ity act”.
52a
§ 351. Definitions
As used or referred to in this title, unless a different mean-
ing clearly appears from the context:
1. The term “authority” shall mean the corporation created
by section three hundred fifty-two of this title.
2. The term “thruway” shall mean generally a divided
highway under the jurisdiction of the authority for mixed traf-
fic with access limited as the authority may determine and
generally with grade separations at intersections, and such
bridges, buildings, tunnels, and other structures and facilities
related thereto as the authority may determine.
3. The terms “bonds” and “notes” shall mean bonds and
notes, respectively, issued by the authority pursuant to this
title.
4. The term “comptroller” shall mean the comptroller of
the state of New York.
5. The term “commissioner” shall mean the commissioner
of transportation of the state of New York.
6. The term “municipality” shall mean a county, town, city,
village, special district or other political subdivision.
7. The term “highway” shall mean a public road or park-
way, maintained by the state or a municipality.
8. The term “real property” shall mean lands, waters, rights
in lands or waters, structures, franchises and interests in land,
including lands under water, riparian rights, property rights in
air space and/or subsurface space and any and all other things
and rights usually included within the said term and includes
also any and all interests in such property less than full title,
such as easements permanent or temporary, rights-of-way,
uses, leases, licenses and all other incorporeal hereditaments
and every estate, interest or right legal or equitable.
9. The term “state” shall mean the state of New York.
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10. The term “New York state canal System” shali mean all
of the canals, canal lands, feeder canals, reservoirs, ca: ter-
minals, canal terminal lands and other property under the
jurisdiction of the authority pursuant to article one-A of the
canal law.
11. The term “Tappan Zee ferry service” shall mean a high
speed ferry service for use by commuters and others between
Rockland county, Westchester county and the city of New
York. It shall include all real property, buildings, terminals,
vessels, structures and other facilities related thereto as the
- authority may determine.
12. The term “thruway system” shall mean: (a) the
thruway; (b) the New York State canal system; and (c) the
Tappan Zee ferry service.
§ 352. New York State thruway authority
1. A board to be known as “New York state thruway
authority” is hereby created. Such board shall be a body cor-
porate and politic constituting a public corporation. It shall
consist of three members appointed by the governor by and
with the advice and consent of the senate. The members first
appointed shall serve for terms ending three, six and nine
years, respectively from January first next succeeding their
appointment. Their successors shall be appointed for terms of
nine years each. A member to be designated as chairman in
his or her appointment as a member shall be chairman of such
board until his or her term as member expires. The chairman
and the other members shall serve without salary or other
compensation, but shall be entitled to reimbursement for their
actual and necessary expenses incurred in the performance of
their official duties. The chairman shall be the chief executive
officer of the authority and shall be primarily responsible for
the discharge of the administrative functions of the authority.
2. Notwithstanding any inconsistent Provisions of law, gen-
eral, special or local, no officer or employee of the state, or of
any civil division thereof, shall be deemed to have forfeited
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or shall forfeit his office or employment by reason of his
acceptance of membership on the board created by this
section; provided, however, a member who holds such other
public office or employment shall receive no additional com-
pensation for services rendered pursuant to this title.
3. The power of such corporation shall be vested in and
exercised by a majority of the members of the board then in
office. Such board may delegate to one or more of its mem-
bers or its officers, agents and employees such powers and
duties as it may deem proper.
4. Such board and its corporate existence shall continue so
long as it shall have notes, bonds or other obligations out-
standing (including notes, bonds or obligations hereafter
issued or incurred) and until its existence shall be terminated
by law. Upon the termination of the existence of the author-
ity, all its rights and properties shall pass to and be vested in
the state.
§ 353. Purposes of the authority and benefits therefrom
The authority is created to and shall have power to finance,
construct, reconstruct, improve, develop, maintain or operate
a thruway system as provided by and subject to the provisions
of this title together with facilities for the public incidental
thereto. It is hereby found and declared that such purposes are
in all respects for the benefit of the people of the state of New
York for the increase of their pleasure, convenience and wel-
fare, for the improvement of their health, to facilitate trans-
portation for their recreation and commerce and for the
common defense; and the authority shall be regarded as per-
forming a governmental function in carrying out its corporate
purpose and in exercising the powers granted by this title.
§ 354. Powers of the authority
Except as otherwise limited by this title, the authority shall
have power
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1. To sue and be sued;
2. To have a seal and to alter the Same at pleasure;
3. To acquire, hold and dispose of personal property for
its corporate purposes;
4. To acquire and hold in the name of the state by pur-
chase or appropriation real property or rights or easements
therein and to sell, exchange, or otherwise dispose of any real
property not necessary for its corporate purposes or whenever
the board shall determine that it is in the interest of the
authority; and upon such terms and conditions and uses as the
board shall determine, to lease or to grant permits to occupy
real property not presently required for thruway purposes but
held for future use in carrying out its corporate purposes;
5. To make by-laws for its Organization and internal man-
agement and, subject to agreements with noteholders or bond-
holders, rules and regulations governing the use of the
thruways and all other properties and facilities under its juris-
diction, which shall be filed with the department of state in
the manner provided by section one hundred two of the exec-
utive law;
6. To appoint officers, agents and employees and fix their
compensation; subject however to the provisions of the civil
service law, which shall apply to the authority and to the sub-
Sidiary corporation thereof as a municipal corporation other
than a city;
7. To make contracts, and to execute all instruments nec-
essary or convenient:
8. Subject to agreements with noteholders or bondholders,
to fix and collect such fees, rentals and charges for the use of
the thruway system or any part thereof necessary or conve-
nient, with an adequate margin of safety, to produce sufficient
revenue to meet the expense of maintenance and operation
and to fulfill the terms of any agreements made with the hold-
ers of its notes or bonds, and to establish the rights and priv-
56a
ileges granted upon payment thereof; provided, however, that
tolls may only be imposed for the passage through locks and
lift bridges by vessels which are propelled in whole or in part
by mechanical power; and provided further that no tolls shall
be imposed or collected prior to the first day of April, nine-
teen hundred ninety-three.
9. To retain and employ private consultants on a contract
basis for rendering professional and technical assistance and
advice;
10. To construct, reconstruct or improve on or along the
thruway system in the manner herein provided, suitable facil-
ities for gas stations, restaurants, and other facilities for the
public, or to lease the right to construct, reconstruct or
improve and operate such facilities; such facilities shall be
publicly offered for leasing for operation, or the right to con-
struct, reconstruct or improve and operate such facilities shall
be publicly offered under rules and regulations to be estab-
lished by the authority, provided, however, that lessees oper-
ating such facilities at the time this act becomes effective,
may reconstruct or improve them or may construct additional
like facilities, in the manner and upon such terms and con-
ditions as the board shall determine; and provided further,
however, that such facilities constructed, reconstructed or
improved on or along the canal system shall be consistent
with the canal recreationway plan approved pursuant to sec-
tion one hundred thirty-eight-c of the canal law and section
three hundred eighty-two of this title;
11. To construct and maintain over, under, along or across
a thruway under its jurisdiction telephone, telegraph, televi-
sion, electric power and other wires or cables, pipe lines,
water mains and other conduits and mechanical equipment,
not inconsistent with the appropriate use of the thruways, or
to contract for such construction; and upon such terms and
conditions as the board shall determine, to lease all or any
part of such property and facilities or the right to use the
same, whether such facilities are constructed by the authority
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or under a contract for such construction, or to lease the right
to construct and use such facilities or to grant permits or ease-
ments for such purposes to any governmental agency of the
State of New York or to any public corporation, or to the
United States of America or any governmental agency thereof
for any public Purposes or to individuals, partnerships and
corporations, provided, however, that no lease or renewal
thereof shall be granted for a period of more than twenty-
years from the date when such lease is made;
12. To borrow money and issue negotiable notes, bonds or
other obligations and to provide for the rights of the holders
thereof;
13. To enter on any lands, waters, or premises for the pur-
pose of making borings, soundings, and surveys;
14. To accept any gifts or any grant of funds or property
from the federal government or from the state of New York or
any other federal or state public body or political subdivision
or any other person and to comply with the terms and condi-
tions thereof;
15. To do all things necessary Or convenient to carry out its
purposes and exercise the powers expressly given in this title.
§ 355. Officers and employees; transfer, promotion and
seniority
1. Officers and employees of state departments, agencies,
and the canal corporation may be transferred to the authority
and officers, agents and employees of the authority may be
transferred to state departments, agencies, and the canal cor-
poration, without examination and without loss of any civil
service status or rights. No such transfer may, however, be
made except with the approval of the head of the state depart-
ment or division involved and the director of the budget and
the chairman of the authority and in compliance with the rules
and regulations of the state civil service commission.
58a
2. Promotions from positions in state departments and
agencies to positions in the authority, and vice versa, may
be made from interdepartmental promotion lists result-
ing from promotion examinations in which both employees
of the authority and employees of the state are eligible to
participate,
3. In computing seniority forpurposes of promotion or for
purposes of suspension or demotion upon the abolition of
positions in the service of the authority or in the service of the
state, in the case of an employee of the authority a period of
prior employment in the service of the state shall be counted
in the same manner as though such period of employment had
been in the service of the authority, and in the case of an
employee of the state a period of prior employment in the ser-
vice of the authority shall be counted in the same manner as
though such period of employment had been in the service of
the state. For the purposes of the establishment and certifi-
cation of preferred lists, employees suspended from the
authority shall be eligible for reinstatement in the service of
the state, and employees suspended from the service of the
state shall be eligible for reinstatement in the service of the
authority, in the same manner as though the authority were a
department of the state.
§ 356. Thruway sections and connections; assuming juris-
diction
At any time after this title shall become effective the
authority may adopt a resolution assuming jurisdiction for its
corporate purposes of any or all of the thruway sections or
connections below described and such connections with high-
ways, hereinafter referred to as “highway connections,” as
the authority may deem advisable in the interest of the pub-
lic to serve traffic needs, and the authority shall continue to
have such jurisdiction so long as its corporate existence shall
continue.
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Pending the adoption of such resolution, the commissioner
Shall have all the powers herein conferred upon the authority
to construct, reconstruct, improve, maintain, and operate such
thruway sections and connections, and highway connections,
and to acquire in the name of the State real property therefor.
Subject to such deviations therefrom as the authority may
deem advisable in the interest of the public to serve traffic
needs, such thruway sections and connections shall be as
follows:
1. Southern Westchester connection. Beginning at the
northerly terminus of the Major Deegan expressway in the
vicinity of Jerome avenue at the New York city corporate line,
thence extending in a general northerly direction through the
city of Yonkers to connect with the southerly end of the Hud-
SON section at a point in the vicinity of Tuckahoe road to be
determined by the commissioner. No fees or other charges
may be imposed for vehicular use of this connection.
2. The Hudson section. Beginning at the northerly end of
the southern Westchester connection at or near Tuckahoe
road, thence in a general northerly and westerly direction
crossing the Hudson river at a point south of Highland Falls,
which crossing shall be known as “The Governor Malcolm
Wilson Tappan Zee Bridge”, including a highway connection
between “The Governor Malcolm Wilson Tappan Zee Bridge”
and the New England section of the thruway presently known
as interstate route two hundred eighty-seven, thence in a gen-
eral westerly direction to intersect with existing route num-
ber seventeen or to a connection with that route, including a
thruway connection from that portion of the section west of
the Hudson river, generally southerly to a point to be deter-
mined by the authority on the New York-New Jersey bound-
ary line.
3. The Catskill section. Beginning at the northerly end of
the Hudson section, extending in a general northerly direction
in the vicinity of Central Valley, Highland Mills, Woodbury
60a
Falls, Vails Gate, thence through or passing Newburgh on the
west, including a highway connection which runs from the
Pennsylvania line at Port Jervis to the Connecticut border east
of Brewster, presently known as interstate route 84, except for
that portion of the highway connection between the inter-
change with the easternmost state highway on the west shore
of the Hudson river (currently designated state touring route
9W) and the interchange with the westernmost state highway
on the east shore of the Hudson river (currently designated
State touring route 9D) which is subject to the jurisdiction of
the New York state bridge authority, thence northerly past
Plattekill and New Paltz, thence passing through or near the
city of Kingston and continuing northerly to the west of
Saugerties and Catskill, continuing northerly passing in the
vicinity of West Coxsackie and Ravena, thence northerly
passing the Feura Bush railroad yards in the vicinity of either
their easterly or westerly extremities, thence continuing
northerly passing to the west or through the westerly part of
the city of Albany, and intersecting United States route num-
ber twenty in the vicinity of McKownville.
4. The Mohawk section. Starting at the northerly end of the
Catskill section on United States route number twenty in the
vicinity of McKownville, continuing in a northwesterly direc-
tion toward the city of Schenectady, and thence around the
southerly side of Schenectady, continuing through or along
the Mohawk Valley by-passing or passing through the city of
Utica, thence westerly passing in the vicinity of Whitesboro
and continuing to the north of the city of Oneida, thence west-
erly to the south of the Cicero swamp to a point on United
States route number eleven north of the village of Liverpool.
5. The Ontario section. Starting at the westerly end of the
Mohawk section at a point on United States route number
eleven north of the village of Liverpool, thence westerly north
of Onondaga lake, thence in a westerly direction passing in
the vicinities of Warners, Memphis, Jordan and Weedsport,
crossing the New York Central and West Shore railroads in
6la
the vicinity of the village of Port Byron, thence southwesterly
crossing the Seneca river in the vicinity of May’s Point,
thence westerly north of the villages of Seneca Falls and
Waterloo and passing in the vicinities of West Junius, Phelps,
Clifton Springs and Manchester, Passing north of Victor and
in the vicinity of Fisher and Severance, continuing westerly
to a point in the vicinity of the city of Batavia, thence west-
erly to a point in the Vicinity of Williamsville, including a
spur to Main street, in the vicinity of Kensington Avenue in
the town of Amherst, thence southerly generally parallel to
and west of Union road to a point south of the Lehigh Valley
railroad tracks, thence southwesterly to a point at the junction
of the Erie and Niagara sections in the Vicinity of the cross-
ing of Dingens street and the Lehigh Valley railroad in the
town of Cheektowaga.
6. The Erie section. Starting at its junction with the Nia-
gara section at a point in the vicinity of the crossing of Din-
gens street and the Lehigh Valley railroad in the town of
Cheektowaga, thence southerly generally paralleling the
Lehigh Valley railroad to Cazenovia creek and extending
southerly and southwesterly to a point north of the village of
Hamburg, thence in a southwesterly direction generally par-
alleling the existing Southwestern Boulevard to a point near
the village of Irving, thence bypassing the village of Silver
Creek to the south, thence extending in a general southwest-
erly direction to the Pennsylvania state line on a location
lying in the vicinity of United States route number twenty and
state touring route number five.
7. The New England section. Beginning at or near the point
of intersection of the Bronx and Pelham parkway and the
extension of Bruckner boulevard in New York city, extending
in a generally northerly direction to a point on or near east
two hundred twenty-second Street, thence generally in an
eastern direction to the New York city- Westchester county
line north of Pelham Bay park, thence generally in a north-
easterly direction through the town of Pelham, the city of
62a
New Rochelle, the town of Mamaroneck, the village of
Mamaroneck, the town of Harrison, the city of Rye, the town
of Rye and the village of Port Chester, to a point on the New
York-Connecticut state line.
8. The Niagara section. Starting at the junction of the Erie
and the Ontario sections at a point in the vicinity of the cross-
ing of Dingens street and the Lehigh Valley railroad in the
town of Cheektowaga, thence generally in a westerly direc-
tion to Erie street in the city of Buffalo, thence continuing in
a general northwesterly direction to the Front, thence through
the Front and north between Niagara street and the ship canal
to the right of way of the abandoned Erie canal near the north-
ern end of such ship canal, thence generally along such right
of way, deviating therefrom to make a connection with the
easterly approach of the South Grand Island bridge, thence
across the Niagara river, utilizing the existing South Grand
Island bridge or constructing another bridge parallel to such
bridge, or both, thence along or parallel to existing Grand
Island boulevard, across the Niagara river, utilizing the exist-
ing North Grand Island bridge, or constructing another bridge
parallel to such bridge, or both.
9. The Berkshire section. Starting at a point or points on
the Catskill section northeast of Becker’s Corners, thence
easterly to a point on the West bank of the Hudson river,
which point shall be more than fifteen miles north of the Rip
Van Winkle bridge, thence across a bridge to be constructed
by the authority and which crossing shall be known as “The
Castleton-on-Hudson Bridge”; and thence generally in a
southeasterly direction and passing in the vicinity of the ham-
lets of Brookview, North Chatham, Old Chatham, and East
Chatham to a point on the New York-Massachusetts boundary
line near the hamlet of State Line.
The thruway constructed along the routes designated in this
section shall be known as “The Governor Thomas E. Dewey
Thruway”.
ee BE A EL SI CLD SC aL LOS Pt
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63a
§ 357. Right of authority to use state property; payment for
improvements
On assuming jurisdiction of a thruway highway section or
connection or any part thereof, or of a highway connection, or
of the New York state canal System, the authority shall! have
the right to possess and use for its corporate Purposes so long
as its corporate existence shall continue, any real property and
rights in real Property theretofore acquired by the state,
including all improvements thereon and state canal lands and
Properties; provided that the use by the authority of canal
lands and properties for highway purposes shall not interfere
with the use thereof for canal purposes.
§ 357-a. State Police—payment for services
Enforcement assistance provided by the division of state
police at the request of the authority shall be reimbursed by
the authority from the miscellaneous special revenue fund,
New York state thruway authority account. The comptroller is
hereby authorized and directed to deposit to this account rev-
enues received from the thruway authority as reimbursement
for expenditures. In addition, the authority shall reimburse the
division for administrative and other support services con-
nected with such assistance. Such reimbursement shall be
made from the miscellaneous special revenue fund, New York
State thruway income account. The authority shall deposit
Said reimbursement funds for administrative and other support
services to the credit of the division of State police on a quar-
terly basis, on or before June thirtieth, September thirtieth.
December thirtieth and March first of each year.
§ 358. Acquisition of real property by the commissioner
1. On assuming jurisdiction of a thruway section or con-
nection or any part thereof, or of a highway connection, the
authority may from time to time determine what real property
is necessary for the construction, improvement and operation
thereof, in addition to real property theretofore acquired by
64a
the state. If funds are made available by the authority for pay-
ment of the cost and expense of the acquisition thereof, the
commissioner when requested by the authority shall acquire
such real property in the name of the state by appropriation,
and, where necessary, remove the owner or occupant thereof
and obtain possession according to the procedure provided by
section three hundred forty-seven of the highway law. The
authority shall have the right to possess and use for its cor-
porate purposes so long as its corporate existence shall con-
tinue all such real property and rights in real property so
acquired.
2. Claims for the value of the property appropriated and for
legal damages caused by any such appropriation shall be
adjusted and determined by the commissioner with the
approval of the authority, or by the court of claims as pro-
vided in said section three hundred forty-seven. When a claim
has been filed with the court of claims, the claimant shall
cause a copy of such claim to be served upon the authority
and the authority shall have the right to be represented and
heard before said court. All awards and judgments arising
from such claims shall be paid out of moneys of the authority.
§ 358-a. Acquisition of real property by the authority
On assuming jurisdiction of a thruway section or connec-
tion or any part thereof, or of a highway connection, the
authority may from time to time determine what real property
is necessary for the construction, improvement and operation
of such thruway section or connection or part thereof, or of a
highway connection, in addition to real property acquired or
to be acquired by the state, and thereupon may acquire such
real property by condemnation pursuant to the condemnation
law. The authority may also, and in any case, acquire real
property in the name of the state by deed and may pay such
price therefor as shall be agreed with the owner thereof.
65a
§ 359. Construction, reconstruction and improvement
1. On assuming jurisdiction of a thruway section or con-
nection or any part thereof, or of a highway connection, or of
the New York state canal system, the authority shall proceed
with the construction, reconstruction or improvement thereof.
All such work shall be done pursuant to a contract or con-
tracts which shall be let to the lowest responsible bidder, by
sealed proposals publicly opened, after public advertisement
and upon such terms and conditions as the authority shall
require; provided, however, that the authority may reject any
and all proposals and may advertise for new proposals, as
herein provided, if in its Opinion, the best interests of the
authority will thereby be promoted: provided further, how-
ever, that at the request of the authority, all or any portion of
such work, together with any engineering required by the
authority in connection therewith, shall be performed by the
commissioner and his subordinates in the department of trans-
portation as agents for, and at the expense of, the authority.
2. All construction, reconstruction and improvements and
any engineering work required in connection therewith which
are performed on behalf of the authority by the commissioner
shall be carried on, generally, in the same manner and subject
to the same provisions of law as apply to the construction and
improvement of state highways.
3. Highway and railroad grade crossings shall in general be
separated by structures to be determined by the authority, and
the authority is hereby authorized to combine or relocate
intersecting highways, to adjust traffic to such grade sepa-
ration structures, except that the grade crossing elimination
structures involved in public service commission cases num-
ber fifty-four hundred seventy-two and nine thousand fifty-
eight shall remain under the jurisdiction of such commission.
The cost of all such structures, except such part as is other-
wise payable, shall be borne by the authority. Telephone and
telegraph wires, power transmission and gas, oil and water
lines, conduits, cables of every kind and nature, which may be
66a
affected by thruway construction, reconstruction or improve-
ment, may, in the discretion of the authority, be relocated in
suitable facilities and the expense of such relocation and of
installing such facilities shall be borne by the authority. The
work of such relocation may be done by the owner of such
wires, lines, conduits and cables, and the authority is hereby
empu.wered to enter into an agreement with such owner for
the performance of all or any part of the work of such relo-
cations at the expense of the authority.
4. In the case of a separation of a grade crossing pursuant
to the preceding subdivision, the structure shall be maintained
and repaired by the authority. Whenever the authority deter-
mines that a separation structure carrying a highway under the
jurisdiction of a municipality requires major repair or recon-
struction, the authority, with the approval of the commis-
sioner of transportation and after consultation with such
municipality, may close the bridge and provide adequate alter-
native detour routing and signing. In the case of municipal
highways, the responsibility for rehabilitation and recon-
struction of the wearing surface, sidewalks, curbs and railings
shall be the responsibility of the authority. Highways com-
bined, relocated or carried over or under a thruway section or
connection, or a highway connection, under the provisions of
the preceding subdivision, shall, upon completion of the
work, revert to and become the responsibility, with regard to
maintenance and repair, of the state or municipality, as the
case may be, formerly having jurisdiction there over.
§ 360. Operation and maintenance
Operation and maintenance by the authority of any thruway
section or connection or any part thereof or of a highway con-
nection, the New York state canal system of which it has
assumed jurisdiction shall be performed (a) by the use of
authority forces and equipment at the expense of the author-
ity or by agreement at the expense of the state or other par-
ties; (b) by contract with municipalities or independent
contractors; (c) at the request of the authority, by the com-
aaa
67a
missioner and his subordinates in the department of trans-
portation as agents for, and at the expense of the authority, or
(d) by a combination of such methods.
§ 361-b. Jurisdiction in certain suits against the authority
Exclusive jurisdiction is hereby conferred upon the court of
claims to hear and determine the claims of any person against
the authority (a) for its tortious acts and those of its agents,
and (b) for breach of a contract relating to construction,
reconstruction, improvement, maintenance or operation, in the
same manner and to the extent provided by and subject to the
provisions of the court of claims act with respect to claims
against the state, and to make awards and render judgments
therefor. All awards and judgments arising from such claims
Shall be paid out of moneys of the authority.
§ 362. Assistance by state officers, departments, boards, divi-
sions and commissions
At the request of the authority, engineering and legal ser-
vices for such authority shall be performed by forces or offi-
cers of the department of transportation and the department of
law respectively, and all other state officers, departments,
boards, divisions and commissions Shall render services
within their respective functions. At the request of the author-
ity, services in connection with the coilection of any charges
or fees for the use of the thruway, the New York state canal
System or any part thereof may be performed by the depart-
ment of motor vehicles.
§ 363. Annual report
The authority shall submit to the governor, to the legisla-
ture, to the comptroller and to the director of the budget on or
before the first day of February of each year a detailed report
Setting forth its operations and fiscal transactions during the
preceding calendar year with a statement of its financial con-
dition as of the end of such year and a statement of all
68a
receipts and expenditures during such year. Such report shall
include detailed information relating to additional expendi-
tures incurred by the authority as a result of the amendments
made to subdivision four of section three hundred fifty-nine
of this chapter pursuant to the chapter of the laws of nineteen
hundred ninety-two which enacted this sentence.
§ 364. Deposit and investment of 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 commingle 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 chairman of the
authority or of such other person as the authority may autho-
rize to make such requisition. 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 autho-
rized to give such security for such deposits. The comptroller
and his legally authorized representatives are hereby autho-
rized and empowered from time to time to examine the
accounts and books of the authority, including its receipts,
disbursements, contracts, leases, sinking funds, investments
and any other matters relating to its financial standing.
Notwithstanding the provisions of this section, the author-
ity shall have power, subject to the approval of the
comptroller, to contract with the holders of any of its notes or
bonds as to the custody, collection, securing, investment and
payment of any moneys of the authority, or any moneys held
in trust or otherwise for the payment of notes or bonds or in
any way to secure notes or bonds, and to carry out any such
contract. Moneys held in trust or otherwise for the payment of
notes or bonds or in any way to secure notes or bonds and
deposits of such moneys may be secured in the same manner
69a
as moneys of the authority, and all banks and trust companies
are authorized to give such security for such deposits.
Moneys of the authority not required for immediate use
may, in the discretion of the authority, be invested by the
comptroller in obligations in which the comptroller may
invest pursuant to section ninety-eight-a of the state finance
law.
Subject to agreements with noteholders and bondholders
and the approval of the comptroller, the authority shall pre-
scribe a system of accounts.
§ 365. Notes or bonds of the authority
1. (a) Subject to the provisions of section three hundred
sixty-six of this title, the authority shall have the power and
is hereby authorized from time to time to issue its negotiable
notes and bonds in conformity with applicable provisions of
the uniform commercial code in such principal amount as, in
the opinion of the authority, shall be necessary to provide suf-
ficient moneys for achieving the corporate purposes thereof,
including construction, reconstruction and improvement of the
thruway sections and connections, and highway connections
herein described, the New York state canal system subject to
the provisions of section three hundred eighty-three of this
title, together with suitable facilities and appurtenances, the
payment of all indebtedness to the state, the cost of acquisi-
tion of all real property, the expense of maintenance and oper-
ation, interest on notes and bonds during construction and for
a reasonable period thereafter, establishment of reserves to
secure notes or bonds, and all other expenditures of the
authority incident to and necessary or convenient to carry out
its Corporate purposes and powers.
(b) The authority shall have power from time to time to
issue renewal notes, to issue bonds to pay notes, and when-
ever it deems refunding expedient, 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
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bonds then outstanding and partly for any other purpose. The
refunding bonds shall be sold and the proceeds applied to the
purchase, redemption or payment of the bonds to be refunded.
(c) Except as may otherwise be expressly provided by the
authority, every issue of the notes or bonds shall be general
obligations payable out of any moneys or revenues of the
authority, subject only to any agreements with the holders of
notes or bonds pledging any receipts or revenues.
[(d) Repealed.]
2. The notes and bonds shall be authorized by resolution of
the board, shall bear such date or dates and mature at such
time or times, in the case of notes and any renewals thereof
within five years after their respective dates and in the case of
bonds not exceeding forty years from their respective dates,
as such resolution or resolutions may provide. The notes and
bonds shall bear interest at such rate or rates, 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 resolutions may provide. Bonds and notes shall
be sold by the authority, at public or private sale, at such price
or prices as the authority may determine. Bonds and notes of
the authority shall not be sold by the authority at private sales
unless such sale and the terms thereof have been approved in
writing by the comptroller, where such sale is not to the
comptroller, or by the director of the budget, where such sale
is to the comptroller. Bonds and notes sold at public sale shall
be sold by the comptroller, as agent of the authority, in such
manner as the authority, with the approval of the comptroller,
shall determine.
3. Any resolution or resolutions authorizing any notes or
bonds or any issue thereof may contain provisions, which
shall be a part of the contract with the holders thereof, as to
a i
Tla
(a) pledging all or any part of the fees, charges, gifts,
grants, rents, revenues or other moneys received or to be
received and leases or agreements to secure the payment of
the notes or bonds or of any issue thereof subject to such
agreements with bondholders as may then exist;
(b) the rates of the fees or charges to be established, and
the amounts to be raised in each year thereby and the use and
disposition of the fees, charges, gifts, grants, rents, revenues
or other moneys received or to be received;
(c) the setting aside of reserves or sinking funds, and the
regulation and disposition thereof:
(d) limitations on the purpose to which the proceeds of sale
of any issue of notes or bonds then or thereafter to be issued
may be applied and pledging such proceeds to secure the pay-
ment of the notes or bonds or of any issue thereof;
(e) limitations on the issuance of additional notes or bonds;
the terms upon which additional notes or bonds may be issued
and secured; the refunding of Outstanding or other notes or
bonds;
(f) the procedure, if any, by which the terms of any con-
tract with noteholders or bondholders may be amended or
abrogated, the amount of notes or bonds the holders of which
| must consent thereto, and the manner in which such consent
may be given;
| (g) limitations on the amount of moneys to be expended by
the authority for operating, administrative or other expenses
of the authority;
(h) in the case of notes or bonds not guaranteed by the
State, vesting in a trustee or trustees such property, rights,
powers 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 this
title, and limiting or abrogating the right of the bondholders
to appoint a trustee under this title or limiting the rights,
duties and powers of such trustee;
72a
(i) the acquisition of jurisdiction over, and of property for,
thruways, the New York state canal system, and the con-
struction, reconstruction, improvement, maintenance or oper-
ation thereof;
(j) any other matters, of like or different character, which
in any way affect the security or protection of the notes or
bonds.
4. Whenever the authority pledges its revenues under a res-
olution authorized by this section, such resolution shall not
prohibit the authority from financing for additional corporate
transportation purposes authorized by law secured by an addi-
tional pledge of such revenues. Such additional pledge of rev-
enues may, in the discretion of the authority, be subordinate
to the pledge of such revenues securing other bonds, notes or
other evidence of indebtedness of the authority. Provided,
however, the authority shall not make any such additional
pledge if the security of the bonds, notes or other evidences
of indebtedness previously issued will be impaired as a result
thereof.
5. It is the intention hereof that any pledge made by the
authority shall be valid and binding from the time when the
pledge is made; that the 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 res-
olution nor any other instrument by which a pledge is created
need be recorded.
6. Neither the members of the board nor any person exe-
cuting the notes or bonds shall be liable personally on the
notes or bonds or be subject to any personal liability or
accountability by reason of the issuance thereof.
73a
7. The authority shall have power out of any funds avail-
able therefor to purchase notes or bonds, which shall there-
upon be cancelled, at a price not exceeding (a) if the notes or
bonds are then redeemable, the redemption price then appli-
cable plus accrued interest to the next interest payment date
thereon, or (b) if the notes or bonds are not then redeemable,
the redemption price applicable on the first date after such
purchase upon which the notes or bonds become subject to
redemption plus accrued interest to said date.
§ 366. Guaranty by the state
1. To the extent authorized by the constitution at the time
of the issuance of notes or bonds, the punctual payment of the
notes and bonds shall be, and the same hereby is, fully and
unconditionally guaranteed by the state, both as to principal
and interest, according to their terms; and such guaranty shall
be expressed upon the face thereof by the signature or fac-
simile signature of the comptroller or a deputy comptroller. In
the event that the authority shall fail to pay when due, the
principal of, or interest on, the notes or bonds, the
comptroller shall pay the holder thereof, and thereupon the
State shall be subrogated to the rights of the noteholders or
bondholders so paid.
2. The authority shall have power to issue notes and bonds
without the guaranty of the state and may issue such notes
or bonds before and after the issuance of notes or bonds so
guaranteed.
3. When guaranteed notes or guaranteed bonds are out-
Standing, notes or bonds secured by a pledge of receipts or
revenues having priority over such outstanding guaranteed
notes or guaranteed bonds shall not be issued, except with the
consent of the comptroller, and unless the authority shall by
resolution first find and determine that, notwithstanding such
pledge, the authority will have adequate means to meet its
obligations to the holders of such Outstanding guaranteed
notes or bonds.
74a
4. When notes or bonds are outstanding secured by a
pledge of receipts or revenues, guaranteed notes or bonds
either unsecured, or secured by a pledge of receipts or rev-
enues subordinate to the pledge securing such outstanding
notes or bonds, shall not be issued unless the authority shall
first find and determine by resolution that notwithstanding the
pledge securing such outstanding notes or bonds, the author-
ity will have adequate means to meet its obligations on the
guaranteed notes or bonds about to be issued.
§ 367. State’s right to require redemption of bonds
Notwithstanding and in addition to any provisions for the
redemption of bonds which may be contained in any contract
with the holders of the bonds, the state may, upon furnishing
sufficient funds therefor, require the authority to redeem,
prior to maturity, as a whole, any issue of bonds on any inter-
est payment date not less than fifteen years after the date of
the bonds of such issue at one hundred four per centum of
their face value and accrued interest or at such lower redemp-
tion price as may be provided in the bonds in case of the
redemption thereof as a whole on the redemption date. Notice
of such redemption shall be published in at least two news-
papers published and circulating respectively in the cities of
Albany and New York at least twice, the first publication to
be at least thirty days before the date of redemption.
§ 368. Remedies of noteholders and bondholders
1. In the event that the authority shall default in the pay-
ment of principal of or interest on any issue of notes or 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
issue of notes or bonds, the holders of twenty-five per centum
in aggregate principal amount of the notes or bonds of such
issue then outstanding, by instrument or instruments filed in
75a
the office of the clerk of the county of Albany and proved or
acknowledged in the same manner as a deed to be recorded,
may appoint a trustee to represent the holders of such notes or
bonds for the purposes herein provided.
2. Such trustee may, and upon written request of the hold-
ers of twenty-five per centum in principal amount of such
notes or bonds then outstanding shall, 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 noteholders or bond-
holders, including the right to require the authority to collect
fees, rentals and charges adequate to Carry out any agreements
with the holders of such notes or bonds and to perform its
duties under this title;
(b) bring suit upon such notes or 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
holders of such notes or bonds;
(d) by action or suit in equity, enjoin any acts or things
which may be unlawful or in violation of the rights of the
holders of such notes or bonds:
(e) declare all such notes or bonds 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 notes or bonds then outstanding, to annul such declara-
tion and its consequences; provided, however, that this clause
(e) shall not be applicable in the case of notes or bonds guar-
anteed by the state.
3. Such trustee, whether or not the issue of bonds or notes
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 thruway, the fees, rentals,
charges or other revenues of which are pledged for the secu-
rity of the bonds or notes of such issue and such receiver may
enter and take possession of such part or parts of the thruway
Se eee
76a
and, subject to any pledge or agreement with bondholders,
shall take possession of all moneys and other property derived
from or applicable to the construction, operation, maintenance
and reconstruction of such part or parts of the thruway and
proceed with any construction thereon which the authority is
under obligation to do and shall operate, maintain and recon-
struct such part or parts of the thruway, and collect and
receive all fees, rentals, charges and other revenues thereafter
arising therefrom subject to any pledge thereof or agreement
with bondholders or noteholders 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 con-
stitute taxable disbursements and all costs and disbursements
allowed by the court shall be a first charge on any tolls,
rentals and other revenues derived from such part or parts of
the thruway.
4. Such trustee shall in addition to the foregoing have and
possess all of the powers necessary or appropriate for the
exercise of any functions specifically set forth herein or inci-
dent to the general representation of bondholders or note-
holders in the enforcement and protection of their rights.
5. The supreme court shall have jurisdiction of any suit,
action or proceeding by the trustee on behalf of such note-
holders or bondholders. The venue of any such suit, action or
proceeding shall be laid in the county of Albany.
6. Before declaring the principal of notes or bonds not
guaranteed by the state due and payable, the trustee shall first
give thirty days’ notice in writing to the authority.
§ 369. Liability of state
The state shall be liable on notes or bonds guaranteed here-
under but shall not be liable on notes or bonds not guaranteed
by the state which shall not be a debt of the state.
77a
§ 370. Notes and bonds legal investments for public officers
and fiduciaries
The notes and bonds are hereby made securities in which
all public officers and bodies of this state and all municipal-
ities and municipal subdivisions, all insurance companies and
associations and other persons carrying on an insurance busi-
ness, all banks, bankers, trust companies, savings banks and
Saving associations, including savings and loan associations,
building and loan associations, investment companies and
other persons carrying on a banking business, all adminis-
trators, guardians, executors, trustees and other fiduciaries
and all other persons whatsoever who are now or may here-
after 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 notes and
bonds are also hereby made securities which may be
deposited with and may be received by all public officers and
bodies of this state and all municipalities and municipal sub-
divisions for any purpose for which the deposit of bonds or
other obligations of this state is now or may hereafter be
authorized.
§ 371. Tax exemption
The property of the authority and its income and operations
shall be exempt from taxation.
§ 372. Tax covenant
The state covenants with the purchasers and with all sub-
sequent holders and transferees of notes and bonds issued by
the authority, in consideration of the acceptance of and pay-
ment for the notes and bonds, that the notes and bonds of the
authority issued pursuant to this title and the income there-
from and all its fees, charges, rents, gifts, grants, revenues,
receipts and other moneys received or to be received, pledged
to pay or secure the payment of such notes or bonds shall at
) all times be free from taxation except for estate or gift taxes
and taxes on transfers.
78a
§ 373. Agreement of the state
1. The state does pledge to and agree with the holders of
notes, bonds, or other obligations of the authority not guar-
anteed by the state that the state will not limit or alter the
rights hereby vested in the authority to establish and collect
such fees, rentals and charges as may be convenient or nec-
essary to produce sufficient revenue to meet the expense of
maintenance and operation and to fulfill the terms of any
agreements made with the holders thereof, or in any way
impair the rights and remedies of such holders until such
notes, bonds, and other obligations, together with the interest
thereon, with interest on any unpaid installments of interest,
and all costs and expenses in connection with any action or
proceedings by or on behalf of such holders, are fully met and
discharged.
2. The state does pledge to and agree with the holders of
any notes or bonds of the authority, not guaranteed by the
state, secured by a pledge of the tolls or other revenues or any
part thereof from any bridge constructed by the authority
across the Hudson river south of Bear mountain bridge or
from any part of the thruway which includes such bridge, that
no bridge or tunnel constituting a connection for vehicular
traffic over, under or across the Hudson river between the pre-
sent location of the Bear mountain bridge and the boundary
line between the state of New York and the state of New Jer-
sey at the west side of the Hudson river will be constructed or
maintained so long as the obligations of such bonds for prin-
cipal and interest shall not have been paid or otherwise dis-
charged.
§ 376. Further additional powers of the authority
The authority shall have the power, in addition to the pow-
ers granted in other sections of this title:
1. (a) To enter into a cooperative highway contractual
agreement or agreements with the commissioner of trans-
portation for the financing by the authority of expenditures
79a
made in advance by the state for design, acquisition, con-
struction, reconstruction or the reconditioning and preserva-
tion of transportation facilities pursuant to the provisions of
section eighty-eight-b of the state finance law, state highways,
State parkways, state arterial highways in cities and related
facilities and structures thereon, including bridges, the recon- |
ditioning and preservation of structures separating highways |
and railroads, and the traffic operations program to increase |
capacity and safety on existing street and highway systems in
urban areas, capacity and infrastructure improvements to
state, county, town, city or village roads, highways, parkways
and bridges, in any case where the expense thereof is paid in
whole or in part by the state.
(b) To issue use permits to the commissioner of trans-
portation for projects financed by the authority of expendi-
tures made in advance by the state in accordance with the
provisions of a cooperative highway contractual agreement or
agreements provided, that such projects are maintained and
operated under the supervision of the department of trans-
portation or the municipal agency designated by the com-
missioner of transportation without cost to the New York
State thruway authority for the full term of such agreement or
| agreements, and, provided further that such use permit shall
| be granted by the authority for the use of such projects by the
department of transportation or the municipal agency desig-
nated by the commissioner of transportation on a toll free
basis.
2. From time to time to issue emergency highway recon-
ditioning and preservation bonds and notes for the purposes
of this section. All the provisions of this title relating to
bonds and notes, which are not inconsistent with the provi-
sions of this section, shall apply to the bonds and notes autho-
rized by this section. The authority shall not issue emergency
highway reconditioning and preservation bonds and notes in
an aggregate principal amount exceeding: (a) one hundred
million dollars, excluding bonds issued to refund outstanding
80a
notes, in the period from April first, nineteen hundred sev-
enty-two through March thirty-first, nineteen hundred eighty-
two; and (b) an additional one hundred thirty-six million
dollars, excluding bonds issued to refund outstanding notes,
on or after April first, nineteen hundred eighty-two but before
April first, nineteen hundred eighty-six.
2-a. From time to time issue emergency highway con-
struction and reconstruction bonds and notes for the purposes
of this section. All the provisions of this title relating to
bonds and notes which are not inconsistent with the provi-
sions of this section shall apply to the bonds and notes autho-
rized by this section. The authority shall not issue emergency
highway construction and reconstruction bonds and notes in
an aggregate principal amount exceeding: (a) one hundred
million dollars, excluding bonds or notes issued to refund out-
standing bonds or notes, before April first, nineteen hundred
ninety and (b) an additional thirty-four million dollars,
excluding bonds or notes issued to refund outstanding bonds
or notes, on or after April first, nineteen hundred ninety and
(c) an additional ninety-three million dollars, excluding bonds
or notes, issued to refund outstanding bonds or notes on or
after April first, nineteen hundred ninety-one and (d) an addi-
tional ninety million dollars, excluding bonds or notes issued
to refund outstanding bonds or notes, on or after April first,
nineteen hundred ninety-two.
2-b. From time to time to enter into agreements with the
commissioner of transportation to finance the capital costs of
projects authorized pursuant to section eighty-eight-b of the
state finance law, and to issue bonds and notes for capital pro-
jects approved by metropolitan planning organizations or
transportation coordinating committees pursuant to the pro-
visions of such section eighty-eight-b. All the provisions of
this title relating to bonds and notes which are not inconsis-
tent with the provisions of this section shall apply to the
bonds and notes authorized by this section.
8la
2-c. From time to time to issue additional emergency high-
way reconditioning and preservation bonds and notes for the
purposes of this section. All the provisions of this title relat-
ing to bonds and notes, which are not inconsistent with the
provisions of this section, shall apply to the bonds and notes
authorized by this section. The authority shall not issue such
additional emergency highway reconditioning and preserva-
tion bonds and notes in an aggregate principal amount
exceeding (a) forty-eight million dollars, excluding bonds or
notes issued to refund outstanding bonds or notes, on or after
April first, nineteen hundred ninety, and (b) an additional
eighty-four million dollars excluding bonds or notes issued to
refund outstanding bonds or notes on or after April first, nine-
teen hundred ninety-one, and (c) an additional eighty-five
million dollars, excluding bonds or notes issued to refund out-
standing bonds or notes, on or after April first, nineteen hun-
dred ninety-two.
3. In addition to the provisions authorized by this title any
resolution or resolutions authorizing any bonds or notes for
the purposes of this section may contain provisions which
may be a part of the contract with the holders of such bonds
providing for the creation and establishment and maintenance
of reserve funds and payments to such reserve funds as here-
inafter in this subdivision set forth.
The authority may create and establish reserve funds to be
known as the emergency highway reconditioning and preser-
vation debt service reserve fund, the emergency highway con-
struction and reconstruction debt service reserve fund and the
suburban transportation debt service reserve fund and may
pay into such reserve funds (a) inoneys made available by the
state for the purposes of such funds from the emergency high-
way reconditioning and preservation fund, or the emergency
highway construction and reconstruction fund or the suburban
transportation fund as created by section eighty-nine, eighty-
nine-a or eighty-eight-b of the state finance law, respectively;
(b) any proceeds of sale of bonds and notes to the extent pro-
82a
vided in the resolution of the authority authorizing the
issuance thereof; and (c) any other moneys which may be
made available to the authority for the purposes of such funds
from any other source or sources. The moneys held in or cred-
ited to such debt service reserve funds established under this
subdivision, except as hereinafter provided, shall be used
solely for the payment of the principal of bonds of the author-
ity secured by such reserve funds, as the same mature, the
purchase of such bonds of the authority, the payment of inter-
est on such bonds of the authority or the payment of any
redemption premium required to be paid when such bonds are
redeemed prior to maturity; provided, however, that moneys
in any such funds shall not be withdrawn therefrom at any
time in such amount as would reduce the amount of such
funds to less than the maximum amount of principal and
interest maturing and becoming due in any succeeding cal-
endar year on the bonds of the authority then outstanding and
secured by such reserve funds, except for the purpose of pay-
ing principal and interest on the bonds of the authority
secured by such reserve funds maturing and becoming due
and for the payment of which other moneys of the authority
are not available. Any income or interest earned by, or incre-
ment to, any such debt service reserve funds due to the invest-
ment thereof may be transferred to any other fund or account
of the authority established for the purposes of this section to
the extent it does not reduce the amount of such debt service
reserve funds below the maximum amount of principal and
interest maturing and becoming due in any succeeding cal-
endar year on all bonds of the authority then outstanding and
secured by such reserve funds.
4. The authority shall not issue bonds at any time for the
purposes of this section if the maximum amount of principal
and interest maturing and becoming due in a succeeding cal-
endar year on the bonds outstanding and then to be issued and
secured by any debt service reserve fund will exceed the
amount of such reserve fund at the time of issuance, unless
the authority at the time of issuance of such bonds, shall
83a
deposit in such reserve fund from the proceeds of the bonds
SO to be issued, or otherwise, an amount which together with
the amount then in such reserve fund, will be not less than the
maximum amount of principal and interest maturing and
becoming due in any succeeding calendar year on the bonds
then to be issued and on all other bonds of the authority then
outstanding and secured by such reserve fund.
5. (a) To assure the continued operation and solvency of
the authority for the carrying out of the purposes relating to
this section provision is made in this section for the accu-
mulation in the debt servic
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