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.

53a

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

54a

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

55a

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

57a

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.

59a

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

ey oS ae eee Pees Oe RTE Se oe

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

70a

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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