Washington Hgts. Opt., Inc. v Port Auth. of N.Y. & N.J.

Washington Hgts. Opt., Inc. v Port Auth. of N.Y. & N.J. 2010 NY Slip Op 01547 [70 AD3d 574] February 23, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Washington Heights Optical, Inc., Appellant,
v
The Port Authority of New York and New Jersey, Respondent.

—[*1] Jacob Rabinowitz, New York, for appellant.

Milton H. Pachter, New York (Margaret Taylor-Finucane of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 27, 2009, which denied plaintiff's motion for a Yellowstone injunction, unanimously affirmed, without costs.

Plaintiff brought this action to enjoin the Port Authority from terminating its lease (First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]). The consent of the states of New York and New Jersey to suits against the Authority (McKinney's Uncons Laws of NY § 7101 [L 1950, ch 301, § 1]) does not extend to suits seeking to restrain or enjoin the Authority unless brought by the attorney general of either state (Uncons Laws § 7105 [L 1950, ch 301, § 5] ) and the courts lack subject matter jurisdiction over this action (see Matter of New York City Ch., Inc. of Natl. Elec. Contrs. Assn. v Fabber, 73 Misc 2d 859, 864 [1973], affd 41 AD2d 821 [1973]; see also Matter of Lewis v Lefkowitz, 32 Misc 2d 434 [1961]).

While Court of Claims Act § 8 provides an exception to immunity for state agencies acting in a propriety capacity (see Miller v State of New York, 62 NY2d 506, 511 [1984]), there is no analogous provision governing the Authority, a bistate agency resident in both jurisdictions (Uncons Laws § 7106 [L 1950, ch 301, § 6]).

In view of the foregoing, plaintiff's remaining arguments are academic. Concur—Tom, J.P., Mazzarelli, Renwick, DeGrasse and Manzanet-Daniels, JJ.