15-2181-cv L In re: World Trade Center Lower Manhattan Disaster Site Litigation In… v. 25 26 Battery Park City Authority , Et Al ., 27

15‐2181‐cv(L)
In re: World Trade Center Lower Manhattan Disaster Site Litigation
In the 1
United States Court of Appeals 2
For the Second Circuit 3
4
5
August Term, 2016 6
Nos. 15‐2181‐cv(L), 15‐2283‐cv(Con), 15‐2285‐cv(Con), 7
15‐2487‐cv(Con), 15‐2506‐cv(Con), 15‐2687‐cv(Con) 8
9
IN R E : WORLD TRADE C ENTER 10
L OWER MANHATTAN D ISASTER S ITE LITIGATION 11
12
13
S TANISLAW F ALTYNOWICZ , L UCYNA F OREMSKA, R UBEN A COSTA, 14
V LADMIR A KOULOV, WALDEMAR B ALCER, JOAQUIN C AMPUZANO , 15
H ENRYK CIBOROWSKI, JAN D OBROWOLSKI , MAREK GLOWATY , 16
E UGENIUSZ JASTRZEBOWSKI, Z BIGNIEW K UCHARSKI, MARIA MORENO , 17
IRENA PERZYNASKA, MARIAN R ETELSKI, DARIUSZ WSZOLKOWSKI , 18
B OGUSLAW Z ALEWSKI, 19
Plaintiffs‐Appellants, 20
21
S TATE OF NEW Y ORK, 22
Intervenor‐Appellant, 23
24
v. 25
26
B ATTERY PARK C ITY A UTHORITY , ET AL ., 27
Defendants‐Appellees. 28
29
30
31

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2
S ANTIAGO A LVEAR , 1
Plaintiff‐Appellant, 2
3
S TATE OF NEW Y ORK, 4
Intervenor‐Appellant, 5
6
v. 7
8
B ATTERY PARK C ITY A UTHORITY , 9
Defendant‐Appellee. 10
11
12
PETER C URLEY , MARY A NN C URLEY , 13
Plaintiffs‐Appellants, 14
15
S TATE OF NEW Y ORK, 16
Intervenor‐Appellant, 17
18
v. 19
20
B ATTERY PARK C ITY A UTHORITY , 21
Defendant‐Appellee.
22
23
24
Appeal from the United States District Court 25
for the Southern District of New York. 26
No. 21 MC 102 — Alvin K. Hellerstein, Judge. 27
28
29
30
 The Clerk of Court is directed to amend the caption as set forth above.

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3
A RGUED: O CTOBER 5, 2016 1
D ECIDED: JANUARY 19, 2017 2
3
4
Before: LYNCH , D RONEY , Circuit Judges, 5
and R EISS , Chief District Judge.* 6
7
8
Appeal from orders of the United States District Court for the 9
Southern District of New York (Hellerstein, J.) granting summary 10
judgment in favor of Battery Park City Authority (“BPCA”). The 11
district court held that BPCA, a public benefit corporation, had the 12
capacity to raise a due process challenge under the New York State 13
Constitution to a New York State statute that revived claims against 14
public corporations for personal injuries sustained during the 15
rescue, recovery, and cleanup efforts that followed the terrorist 16
attacks of September 11, 2001. The court further held that the statute 17
violated BPCA’s due process rights under the state constitution. This 18
appeal followed. Because we conclude that there is insufficient New 19
York State authority on the legal standards governing these issues, 20
we CERTIFY two questions to the New York Court of Appeals. 21
22
23
G REGORY J. C ANNATA, Gregory J. 24
Cannata & Associates, LLP, New 25
York, New York, for Plaintiffs‐ 26
Appellants Stanislaw Faltynowicz, 27
Lucyna Foremska, Ruben Acosta, 28
* Chief Judge Christina Reiss, United States District Court for the District of
Vermont, sitting by designation.

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4
Vladmir Akoulov, Waldemar Balcer, 1
Joaquin Campuzano, Henryk 2
Ciborowski, Jan Dobrowolski, Marek 3
Glowaty, Eugeniusz Jastrzebowski, 4
Zbigniew Kucharski, Maria Moreno, 5
Irena Perzynaska, Marian Retelski, 6
Dariusz Wszolkowski, Boguslaw 7
Zalewski. 8
9
P AUL J. N APOLI (Michael Cohan, on 10
the brief), Worby Groner Edelman & 11
Napoli Bern, LLP, New York, New 12
York, for Plaintiffs‐Appellants Santiago 13
Alvear, Peter Curley, Mary Ann Curley. 14
15
A NDREW W. AMEND, Senior Assistant 16
Solicitor General (Barbara D. 17
Underwood, Steven C. Wu, Eric Del 18
Pozo, on the brief), for Eric T. 19
Schneiderman, Attorney General for 20
the State of New York, New York, 21
New York, for Intervenor‐Appellant 22
State of New York. 23
24
JOHN M. F LANNERY (Eliza M. 25
Scheibel, on the brief), Wilson Elser 26
Moskowitz Edelman & Dicker LLP, 27
White Plains, New York, for 28
Defendant‐Appellee Battery Park City 29
Authority. 30
31
32

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5
D RONEY , Circuit Judge: 1
This appeal requires us to determine whether Battery Park 2
City Authority (“BPCA”), a public benefit corporation, has the 3
capacity to challenge a New York State claim‐revival statute as 4
unconstitutional under the New York State Constitution, and 5
whether that challenge succeeds on the merits. As we explain below, 6
we believe we cannot resolve those questions without first certifying 7
two predicate questions to the New York Court of Appeals: 8
(1) Before New York State’s capacity‐to‐sue doctrine 9
may be applied to determine whether a State‐ 10
created public benefit corporation has the capacity 11
to challenge a State statute, must it first be 12
determined whether the public benefit corporation 13
“should be treated like the State,” see Clark‐ 14
Fitzpatrick, Inc. v. Long Island R.R. Co., 516 N.E.2d 15
190, 192 (N.Y. 1987), based on a “particularized 16
inquiry into the nature of the instrumentality and 17
the statute claimed to be applicable to it,” see John 18
Grace & Co. v. State Univ. Constr. Fund, 375 N.E.2d 19
377, 379 (N.Y. 1978), and if so, what considerations 20
are relevant to that inquiry?; and 21
(2) Does the “serious injustice” standard articulated in 22
Gallewski v. H. Hentz & Co., 93 N.E.2d 620 (N.Y. 23

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6
1950), or the less stringent “reasonableness” 1
standard articulated in Robinson v. Robins Dry Dock 2
& Repair Co., 144 N.E. 579 (N.Y. 1924), govern the 3
merits of a due process challenge under the New 4
York State Constitution to a claim‐revival statute? 5
Accordingly, we CERTIFY these questions to the New York 6
Court of Appeals. 7
BACKGROUND 8
I. Battery Park City Authority 9
In 1968, the New York State Legislature decided to address 10
the “substandard, insanitary, deteriorated and deteriorating 11
conditions” affecting Manhattan’s Lower West Side. N.Y. Pub. Auth. 12
Law § 1971. Accordingly, it created BPCA and tasked it with 13
“replanning, reconstructi[ng] and rehabilitati[ng]” the area, with 14
significant participation by the private sector, “for the prosperity 15
and welfare of the people of the city of New York and of the state as 16
a whole.” Id. The redevelopment was to include the creation of a 17
mixed commercial and residential community. See id. 18

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7
To accomplish this goal, BPCA was created as a public benefit 1
corporation, 1 id. § 1973, and authorized to, inter alia, “sue and be 2
sued,” “acquire, lease, hold, mortgage and dispose of real property,” 3
“fix, establish and collect rates, rentals, fees and other charges,” and 4
“borrow money and issue negotiable bonds, notes or other 5
obligations,” id. § 1974. BPCA maintains its own general fund, see id. 6
§ 1975, and is solely responsible for the repayment of its bond 7
obligations, see id. § 1979. It has seven members, each appointed by 8
the Governor with the advice and consent of the New York Senate. 9
Id. § 1973(1). 10
BPCA has successfully developed the 92‐acre site—known as 11
Battery Park City—into a community that houses over 10 million 12
square feet of commercial space, 13,500 residents, 4 public schools, 13
and 36 acres of parks. See Who We Are, B ATTERY PARK C ITY 14
1 New York law defines a “public benefit corporation” as a “corporation
organized to construct or operate a public improvement wholly or partly within
the state, the profits from which inure to the benefit of this or other states, or to
the people thereof.” N.Y. Gen. Constr. Law § 66(4).

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8
A UTHORITY , http://bpca.ny.gov/about/who‐we‐are/ (last visited Jan. 1
13, 2017). 2
II. Plaintiffs’ Claims Against BPCA 3
This consolidated appeal involves claims for personal injuries 4
sustained by eighteen workers who participated in the large‐scale 5
cleanup operations across Lower Manhattan following the terrorist 6
attacks of September 11, 2001. In the years that followed, these 7
Plaintiffs developed a host of serious respiratory illnesses. Plaintiffs 8
believe their illnesses stemmed from the cleanup work they had 9
performed at several BPCA‐owned properties impacted by the 9/11 10
attacks. Specifically, Plaintiffs believe they had been exposed to 11
harmful toxins as a result of BPCA’s failure to adequately ensure 12
worker safety at those sites. Consequently, between 2006 and 2009, 13
Plaintiffs filed personal injury suits against BPCA in the United 14
States District Court for the Southern District of New York, asserting 15

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9
claims under New York labor law and common‐law negligence. 2 1
Plaintiffs’ suits, along with hundreds of others, were assigned to 2
Judge Hellerstein and consolidated for pretrial purposes. 3
In July 2009, the district court dismissed a substantial number 4
of these cases, including Plaintiffs’, for failure to serve a timely 5
notice of claim upon certain public defendants as required by New 6
York law.3 Specifically, the district court dismissed more than 600 7
suits against BPCA, and another 124 suits against other public and 8
municipal entities. 9
2 Plaintiffs filed suit in the Southern District of New York pursuant to the Air
Transportation Safety and System Stabilization Act, which vested that court with
“exclusive jurisdiction over all actions brought for any claim (including any
claim for loss of property, personal injury, or death) resulting from or relating to
the terrorist‐related aircraft crashes of September 11, 2001.” Pub. L. No. 107‐42,
§ 408(b)(3), 115 Stat. 230 (codified at 49 U.S.C. § 40101 note). Unless inconsistent
with or preempted by federal law, New York law governs Plaintiffs’ claims. See
id. § 408(b)(2).
3 Under New York law, a plaintiff filing a personal injury claim against a public
defendant must: (1) serve a notice of claim within ninety days of the claim’s
accrual, N.Y. Gen. Mun. Law § 50‐e(1)(a); and (2) file suit within three years of
the claim’s accrual, N.Y. C.P.L.R. 214(5). A claim based on a latent injury from
exposure to a harmful substance accrues “on the date of discovery of the injury
by the plaintiff or on the date when through the exercise of reasonable diligence
the injury should have been discovered, whichever is earlier.” N.Y. C.P.L.R. 214‐
c(3).

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10
III. Jimmy Nolan’s Law 1
In the wake of these dismissals, the New York Legislature 2
enacted General Municipal Law § 50‐i(4), known as “Jimmy Nolan’s 3
Law,” which revived for one year all time‐barred claims against 4
public corporations for personal injuries sustained by workers who 5
participated in post‐9/11 rescue, recovery, or cleanup efforts. See 6
N.Y. Gen. Mun. Law § 50‐i(4)(a). The Legislature explained that 7
“thousands of World Trade Center workers ha[d] developed 8
disabling respiratory illnesses and other injuries at rates that greatly 9
exceed those of the general population,” and that those workers 10
“should not be denied their rights to seek just compensation simply 11
because they were provided incorrect information about their work 12
conditions, did not immediately recognize the casual connection 13
between their injuries and their exposure, or were unaware of the 14
applicable time limitations.” N.Y. State Assembly Mem. Supp. 15
Legislation, reprinted in Bill Jacket for 2009 A.B. 7122, Ch. 440, at 6 16

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11
(July 17, 2009). Following the law’s enactment, many workers, 1
including Plaintiffs, revived their claims against BPCA. 2
IV. BPCA’s Challenge to Jimmy Nolan’s Law 3
In August 2014, BPCA moved for summary judgment against 4
eight workers who had filed suit against BPCA pursuant to Jimmy 5
Nolan’s Law, challenging the law as unconstitutional. BPCA 6
contended, first, that it had the capacity to raise such a challenge 7
despite its status as a public benefit corporation, and, second, that 8
the law violated its due process rights under the New York State 9
Constitution. The Attorney General of the State of New York 10
(hereinafter the “Attorney General”) intervened to defend the law. 11
The district court (Hellerstein, J.) agreed with BPCA, and 12
granted summary judgment in BPCA’s favor. In re World Trade Ctr. 13
Lower Manhattan Disaster Site Litig., 66 F. Supp. 3d 466, 468 (S.D.N.Y. 14
2014). In so ruling, the district court held that BPCA is an entity 15
independent of New York State and therefore has the capacity to 16

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12
challenge the constitutionality of State statutes. Id. at 473. On the 1
merits, the court held that “Jimmy Nolan’s Law does not fall within 2
the narrow exception for revival statutes” under New York law, and 3
is “unconstitutional under the Due Process Clause of the New York 4
State Constitution, as applied to BPCA.” Id. at 476. 5
On March 5, 2015, BPCA moved to extend the district court’s 6
ruling to an additional 171 workers, including Plaintiffs. Finding no 7
relevant factual differences between those workers and the eight 8
whose claims were previously dismissed, the district court granted 9
BPCA’s motion. In re World Trade Ctr. Lower Manhattan Disaster Site 10
Litig., No. 21 MC 102 (S.D.N.Y. Apr. 13, 2015), ECF No. 5796. 11
Plaintiffs and the Attorney General now appeal. 12
DISCUSSION 13
I. Standard of Review 14
We review de novo a district court’s grant of summary 15
judgment. Matthews v. City of New York, 779 F.3d 167, 171 (2d Cir. 16

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13
2015). Summary judgment is proper only if “‘the movant shows that 1
there is no genuine dispute as to any material fact and the movant is 2
entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 3
56(a)). We also review de novo a district court’s interpretation and 4
application of state law. Phansalkar v. Andersen Weinroth & Co., 344 5
F.3d 184, 199 (2d Cir. 2003) (per curiam). 6
II. BPCA’s Capacity to Challenge Jimmy Nolan’s Law 7
a. The Capacity‐to‐Sue Rule 8
New York follows the traditional capacity‐to‐sue rule, which 9
states that “municipalities and other local governmental corporate 10
entities and their officers lack capacity to mount constitutional 11
challenges to acts of the State and State legislation.” City of New York 12
v. State of New York, 655 N.E.2d 649, 651 (N.Y. 1995). Such entities are 13
“purely creatures or agents of the State,” and so “cannot have the 14
right to contest the actions of their principal or creator affecting 15
them in their governmental capacity.” Id. In other words, “political 16

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14
power conferred by the Legislature confers no vested right as 1
against the government itself.” Id. (quoting Black River Regulating 2
Dist. v. Adirondack League Club, 121 N.E.2d 428, 433 (N.Y. 1954)). This 3
rule is also a “necessary outgrowth of separation of powers doctrine: 4
it expresses the extreme reluctance of courts to intrude in the 5
political relationships between the Legislature, the State and its 6
governmental subdivisions.” Id. at 654. 7
The New York Court of Appeals has recognized four 8
exceptions to this general rule: (1) where a public corporation has 9
express statutory authorization to bring suit; (2) where the 10
legislation adversely affects a public corporation’s proprietary 11
interest in a specific fund of moneys; (3) where the statute impinges 12
upon “Home Rule” powers of a public corporation constitutionally 13
guaranteed under article IX of the New York State Constitution; and 14
(4) where the public corporation asserts that, if it is obliged to 15

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15
comply with the statute, that very compliance will force the 1
corporation to violate a constitutional proscription. See id. at 652. 2
Resolution of the issue of whether BPCA may mount its 3
constitutional challenge would thus seemingly involve the 4
straightforward application of the capacity‐to‐sue rule and its four 5
recognized exceptions. However, BPCA asserts that, before this rule 6
may be applied, two criteria must first be met: (1) it must be 7
determined that the public entity “should be treated like the State,” 8
as determined by a “particularized inquiry into the nature of the 9
instrumentality and the statute claimed to be applicable to it;” and 10
(2) the statute must restrict the public benefit corporation’s 11
governmental powers. We address each criterion in turn. 12
b. The “Particularized Inquiry” Test 13
In Clark‐Fitzpatrick, Inc. v. Long Island Rail Road Co., the New 14
York Court of Appeals recognized that public benefit corporations 15
are not political subdivisions of the State “but rather enjoy, for some 16

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16
purposes, an existence separate and apart from the State.” 516 1
N.E.2d 190, 192 (N.Y. 1987). The Court explained that a 2
“particularized inquiry” is therefore “necessary to determine 3
whether—for the specific purpose at issue—the public benefit 4
corporation should be treated like the State.” Id. 5
Consistent with this framework, the New York Court of 6
Appeals has considered whether a public benefit corporation should 7
be “treated like the State” for purposes of, inter alia, receiving 8
immunity from punitive damages, Id. at 192–93, falling within the 9
scope of a statute prohibiting the defrauding of the “state or any 10
political subdivision thereof,” People v. Miller, 519 N.E.2d 297, 298–99 11
(N.Y. 1987) (internal quotation marks omitted), and providing 12
economic relief on public construction contracts, John Grace & Co. v. 13
State Univ. Constr. Fund, 375 N.E.2d 377, 377–79 (N.Y. 1978). 14
It is unclear whether New York courts have applied the 15
particularized‐inquiry test in the present context—that is, to 16

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17
determine whether a public benefit corporation should be treated 1
like the State for the purpose of having the capacity to raise a 2
constitutional challenge to a State statute. Nonetheless, BPCA urges 3
us to apply the particularized‐inquiry test here. Were we to do so, 4
BPCA maintains, we would conclude that BPCA should not be 5
treated like the State and is therefore not subject to the bar imposed 6
by the capacity‐to‐sue rule.4 Indeed, the district court concluded as 7
much in its opinion below. See In re World Trade Ctr. Lower Manhattan 8
Disaster Site Litig., 66 F. Supp. 3d at 471–73. 9
In response, the Attorney General argues that, although public 10
benefit corporations may not be identical to the State in every 11
respect, they are indistinguishable from the State for the purpose of 12
challenging a State statute. In other words, the Attorney General 13
4 We pause here to note one of the ironies of this case. On the one hand, BPCA
insists that it should not be treated like the State, and therefore may freely
challenge Jimmy Nolan’s Law as unconstitutional. On the other hand, BPCA has
consistently invoked as a defense New York’s 90‐day notice‐of‐claim rule—a
protection available to BPCA by virtue of its status as a public corporation. See
N.Y. Gen. Mun. Law § 50‐e.

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18
contends that the capacity‐to‐sue rule is absolute, and does not turn 1
on a particularized inquiry into the particular functions or purposes 2
of the public corporation in question. Rather, the “relevant and 3
dispositive factor” is whether the entity “remain[s] subject to the 4
Legislature’s ongoing control.” Intervenor’s Reply Br. at 4. 5
The Attorney General asserts that these principles are plainly 6
illustrated by the New York Court of Appeals’ decision in Black River 7
Regulating District v. Adirondack League Club. In that case, the Black 8
River Regulating District proposed a plan to build a reservoir and 9
dam on the Moose River to regulate river flow, and raised funds for 10
the project by issuing certificates of indebtedness. Black River, 121 11
N.E.2d at 430, 434. The Legislature later passed a statute effectively 12
barring the project. Id. at 430. The District brought suit, challenging 13
the statute as unconstitutional. Id. at 431. The Court of Appeals held 14
that the District lacked the power to raise such a challenge. Id. at 434. 15
16

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19
The Court explained: 1
A regulating district charged with authority to carry out 2
the public purpose is an agency of the State depending 3
for its existence and performing its functions subject to 4
the control and direction of the State. The number and 5
nature of its powers are within the State’s absolute 6
discretion and any alteration, impairment or destruction 7
of those powers by the Legislature presents no question 8
of constitutionality. 9
Id. at 432–33. The Court further reasoned that the District had “no 10
special character different from that of the State,” that its purpose 11
was “a State purpose,” and that its “issuance of certificates of 12
indebtedness [did] not confer upon [it] an independent status by 13
which [it has] standing.” Id. at 434. Accordingly, the District’s suit 14
was barred. See id. 15
Although the Attorney General argues that Black River 16
precludes BPCA’s challenge, we believe that the decision’s 17
significance is not so clear. As an initial matter, it is not evident 18
whether, at the time of the Court’s decision, the District was a 19
“public benefit corporation” under New York law. The District’s 20

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20
enabling laws created “river regulating districts” as “public 1
corporations,” and defined that term as including “counties, towns, 2
cities, villages, corporations created under this article and all other 3
governmental agencies clothed with the power of levying general 4
taxes.” N.Y. Envtl. Conserv. Law §§ 430(7), 431 (1915). The law in 5
effect in 1954, meanwhile, defined “public corporations” as 6
including municipal corporations, district corporations, and public 7
benefit corporations, each of which were defined separately. L.1941, 8
ch. 460, § 3(1) (1941). Thus, we cannot discern whether the District 9
was, at the relevant point in time, a public benefit corporation—as 10
opposed to a municipal or district corporation—a fact that 11
potentially undermines Black River’s significance to the present 12
appeal.5 13
5 Indeed, the current enabling statute for river regulating districts again employs
the general term “public corporation,” and provides that, for purposes of federal
law, such districts are deemed to be municipal corporations. See N.Y. Envtl.
Conserv. Law §§ 15‐2103(1), 15‐2103(1‐a). But see Hudson River‐Black River
Regulating District, NEW YORK STATE , http://www.hrbrrd.com (last visited Jan. 13,
2017) (District, in its current incarnation, describing itself as a public benefit
corporation); N. Elec. Power Co. v. Hudson River‐Black River Regulating Dist., 997

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21
Even assuming the District was a public benefit corporation at 1
the time of the Court’s decision, it is not clear to us that Black River 2
altogether forecloses application of the particularized‐inquiry test. 3
As described above, the Court observed that the District had “no 4
special character” apart from that of the State, that its sole purpose 5
was a “State purpose,” and that its financial authority conferred no 6
independent standing. Black River, 121 N.E.2d at 434. This language 7
is not inconsistent with the particularized‐inquiry test. 8
Our reading of Black River is further complicated by a later 9
decision by the New York Court of Appeals in Patterson v. Carey. In 10
that case, the Jones Beach State Parkway Authority, a public benefit 11
corporation, financed a new parkway through the sale of bonds, and 12
charged tolls on the parkway to discharge its bond obligations. 13
Patterson, 363 N.E.2d 1146, 1149–50 (N.Y. 1977). Years later, the 14
Parkway Authority announced a toll increase. Id. at 1150. The New 15
N.Y.S.2d 793, 794 (N.Y. App. Div. 2014) (characterizing District, in its current
incarnation, as a public benefit corporation).

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22
York Legislature quickly enacted a statute suspending the increase. 1
Id. at 1150–51. The Parkway Authority and the institutional trustee 2
for the Authority’s bondholders filed suit against the State to declare 3
the law unconstitutional. Id. at 1151. After concluding that the 4
Parkway Authority and trustee had “sufficient standing” to bring 5
suit, id. at 1151 n.*, the Court of Appeals found the statute 6
unconstitutional, id. at 1151. 7
BPCA interprets Patterson as holding that a “public benefit 8
corporation has standing to bring a constitutional challenge to a 9
state statute.” Appellee’s Br. at 17. It is not clear, though, that 10
Patterson should be interpreted in this way for several reasons. First, 11
the Court of Appeals’ discussion on standing is relegated to a 12
footnote; the main text of the opinion concerns the merits of the 13
plaintiffs’ constitutional challenge and makes no mention of 14
standing principles or the capacity‐to‐sue rule.6 15
6 Indeed, the Court of Appeals has drawn a distinction elsewhere between
“standing” and “capacity to sue,” stating that “[t]he issue of lack of capacity to

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23
Second, both the Parkway Authority and the institutional 1
trustee for the bondholders served as plaintiffs. Accordingly, the 2
Court had no need to consider whether the Parkway Authority, on 3
its own, would have had the legal capacity to raise its challenge 4
against the State. Indeed, in concluding that the plaintiffs had 5
standing, the Court cited Jeter v. Ellenville Central School District, 360 6
N.E.2d 1086 (N.Y. 1977), apparently for the premise that, although a 7
public entity might have “procedural standing” to participate in a 8
suit challenging State legislation, it nevertheless lacks the 9
substantive right to raise its own constitutional challenges. See Jeter, 10
360 N.E.2d at 1088. This view is supported by the Court’s merits 11
discussion, which focuses on the constitutional rights of the 12
bondholders, not the Park Authority. See Patterson, 363 N.E.2d at 13
sue does not go to the jurisdiction of the court, as is the case when the plaintiffs
lack standing.” City of New York, 655 N.E.2d at 652. Thus, it is possible to read
Patterson as ruling not on capacity to sue, the lack of which “is a ground for
dismissal which must be raised by motion and is otherwise waived,” id., but
rather on jurisdictional standing, thus making the case of little relevance to the
present appeal.

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24
1152 (holding that “the statute is arbitrary and deprives bondholders 1
of a contractual right without due process of law” (emphasis 2
added)). 3
Finally, although the Court’s merits discussion reiterates the 4
principle that a “public authority enjoys an existence separate and 5
apart from the State, even though it exercises a governmental 6
function,” id. at 1154 (internal quotation marks omitted), that 7
language speaks to whether the Legislature impermissibly infringed 8
the State Comptroller’s exercise of his discretionary power, and is 9
separate from the Court’s due process analysis, see id. Based on these 10
considerations, we are disinclined to read Patterson as BPCA does. 11
Nonetheless, Patterson adds additional uncertainty to an already 12
unsettled area of state law. 13
In light of the foregoing, we believe there is an absence of 14
definitive guidance on the question of whether the particularized‐ 15
inquiry test applies in the present context. To our knowledge, no 16

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25
New York court has squarely addressed this question and, as 1
discussed above, other relevant State‐law decisions are inconclusive. 2
As a result, we are unable to predict with confidence how the New 3
York Court of Appeals would resolve this issue—a factor weighing 4
in favor of certification. See Griffin v. Sirva Inc., 835 F.3d 283, 293–94 5
(2d Cir. 2016). 6
Moreover, it is less than clear to us from the caselaw how the 7
particularized inquiry, if required, is to be conducted. We 8
understand that such an inquiry focuses on “the nature of the 9
instrumentality” in conjunction with “the statute claimed to be 10
applicable to it.” John Grace, 375 N.E.2d at 379. However, given the 11
diversity of the types of public benefit corporations and of the issues 12
at stake in the various cases in which such inquiries have been 13
conducted, we find it difficult to discern not only whether New York 14
law requires us to conduct a particularized inquiry, but also what 15
such an inquiry would involve in the particular case before us. 16

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26
c. Restriction on Governmental Powers 1
BPCA also asserts that, for the capacity‐to‐sue rule to apply, 2
the statute at issue must restrict the public entity’s governmental 3
powers. Here, BPCA contends, Jimmy Nolan’s Law imposes no 4
restrictions on BPCA’s delegated powers and functions; rather, the 5
law merely addresses procedural prerequisites to litigation against 6
all public corporations. Accordingly, BPCA contends it is free to 7
challenge the law’s constitutionality. 8
This argument is squarely foreclosed by the New York Court 9
of Appeals’ decision in City of New York v. State of New York: 10
[T]he municipal plaintiffs argue that the lack of capacity 11
to sue doctrine only applies to . . . statutory restrictions 12
on a municipality’s power . . . . This contention ignores 13
our precedents in which lack of capacity to sue has 14
applied to block challenges to a far wider variety of 15
State actions having differing adverse impacts on local 16
governmental bodies and their constituents. 17
655 N.E.2d at 653. We therefore reject BPCA’s argument as meritless. 18

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III. The Constitutionality of Jimmy Nolan’s Law 1
On the merits, BPCA argues that Jimmy Nolan’s Law violates 2
its due process rights under the New York State Constitution. 7 The 3
Attorney General asserts that the statute is constitutional. Before we 4
can resolve this issue, we must first determine which legal standard 5
applies when evaluating the constitutionality of a revival statute. 6
In Robinson v. Robins Dry Dock & Repair Co., the New York 7
Court of Appeals examined the constitutionality of a statute that 8
revived for one year certain injured workers’ claims. See 144 N.E. 9
579, 580 (N.Y. 1924). The Court began by recognizing that the 10
situation was “accidentally produced”—the workers faced a 11
limitations bar because they had originally pursued claims under an 12
alternative statutory scheme, which was later overturned by the U.S. 13
Supreme Court. See id. at 580, 582. Observing that disallowance of 14
7 The revival of time‐barred claims does not implicate federal due process
protections. See, e.g., Stogner v. California, 539 U.S. 607, 651, 653 (2003); Chase Sec.
Corp. v. Donaldson, 325 U.S. 304, 314 (1945). Presumably for that reason, BPCA
raises no federal constitutional claim, and argues only that Jimmy Nolan’s law
conflicts with the New York State Constitution.

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the workers’ claims would thus “deprive a plaintiff without fault of 1
a cause of action based on defendants’ wrong,” and noting that the 2
revival statute imposed “no arbitrary deprivation” of the 3
defendants’ rights, the Court concluded that the statute was a 4
“reasonable” exercise of the Legislature’s power and declared the 5
statute constitutional. Id. at 582. 6
In Gallewski v. H. Hentz & Co., the Court of Appeals considered 7
the constitutionality of a revival statute that provided redress to 8
persons unable to file claims by virtue of being residents of Nazi‐ 9
occupied territories during World War II. See Gallewski, 93 N.E.2d 10
620, 622 (N.Y. 1950). The Court of Appeals cited Robinson, and 11
interpreted it as “holding that the Legislature may constitutionally 12
revive a personal cause of action where the circumstances are 13
exceptional and are such as to satisfy the court that serious injustice 14
would result to plaintiffs not guilty of any fault if the intention of the 15
Legislature were not effectuated.” Id. at 624. Applying that test, the 16

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Court held that the statute at issue was “entirely proper.” Id. As the 1
Court explained, World War II caused an “upheaval of unparalleled 2
magnitude” and a “thorough disruption of communication,” utterly 3
preventing residents of occupied territories from filing claims in U.S. 4
courts. Id. at 624–25. Allowing limitations periods to run during such 5
a time, the Court concluded, “would not accord with elementary 6
notions of justice and fairness.” Id. at 625. 7
Finally, in Hymowitz v. Eli Lilly & Co., the Court of Appeals 8
addressed the constitutionality of a statute that revived for one year 9
all actions for injuries caused by the drug diethylstilbestrol (“DES”). 10
See Hymowitz, 539 N.E.2d 1069, 1072 (N.Y. 1989). Due to the latent 11
nature of DES injuries, many such suits were barred by the 12
applicable statute of limitations, which accrued upon exposure to 13
the toxic substance rather than discovery of the injury. See id. at 14
1072–73. The Court began by reciting the “stringent,” “serious 15
injustice” standard articulated in Gallewski. Id. at 1079. The Court 16

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next observed that a “less strict test” had been applied in other cases, 1
and cited the “reasonable[ness]” standard articulated in Robinson. Id. 2
Though faced with these two differing standards, the Court 3
concluded that the revival statute in question met “the highest 4
standard” and so found no need to “light upon a precise test.” Id.8 5
Both BPCA and the Attorney General acknowledge these 6
complexities. Nonetheless, the Attorney General asserts that, based 7
on existing decisions, the “New York courts, if made to choose, 8
would evaluate Jimmy Nolan’s Law under a reasonableness 9
standard.” Intervenor’s Br. at 43. BPCA, meanwhile, insists that New 10
8 To further complicate our analysis, the Legislature has since enacted a new
“discovery” rule to account for “the latent effects of exposure to any substance.”
See L.1986, ch. 682, § 2. The rule provides:
[A] claim or action for personal injury . . . caused by the latent
effects of exposure to any substance or combination of substances
. . . shall be deemed to have accrued on the date of discovery of
the injury by the plaintiff or on the date when through the exercise
of reasonable diligence the injury should have been discovered,
whichever is earlier.
N.Y. C.P.L.R. 214‐c(3). To our knowledge, New York courts have yet to address
how this rule might affect the analysis of a claim‐revival statute under either
Robinson or Gallewski.

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York courts have consistently applied the “serious injustice” test. 1
Appellee’s Br. at 41. Indeed, the district court below appears to have 2
adopted this more stringent test. See In re World Trade Ctr. Lower 3
Manhattan Disaster Site Litig., 66 F. Supp. 3d at 473 (describing 4
revival statutes as applicable “only in limited circumstances,” where 5
“serious injustice” might otherwise result). 6
Faced with two differing legal standards, we are unable to 7
determine which standard the New York Court of Appeals would 8
apply. See Griffin, 835 F.3d at 293–94. The question is further 9
complicated by the fact that neither party has cited to us, nor have 10
we found, any case in which any New York state court has struck 11
down any statute reviving expired claims. In the absence of any 12
caselaw applying any of the differing verbal formulations to find 13
such a statute unconstitutional, it is difficult to perceive whether the 14
various tests differ in their concrete application, or under what 15
circumstances New York would find a revival statute 16

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unconstitutional under any of the proposed tests. We therefore turn 1
next to the issue of whether certification on this question, as well as 2
the preceding question, is appropriate. 3
IV. Certification to the New York Court of Appeals 4
Pursuant to Second Circuit Local Rule 27.2, we may certify to 5
the New York Court of Appeals “determinative questions of New 6
York law that are involved in a case pending before us for which no 7
controlling precedent of the Court of Appeals exists.” Osterweil v. 8
Bartlett, 706 F.3d 139, 142 (2d Cir. 2013) (internal quotation marks 9
and alterations omitted); see also State Farm Mut. Auto. Ins. Co. v. 10
Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (deeming certification 11
appropriate “where state law is not clear and state courts have had 12
little opportunity to interpret it,” “where an unsettled question of 13
state law raises important issues of public policy,” and “where the 14
question is likely to recur”). 15

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33
Here, BPCA and the Attorney General contend that New York 1
law is sufficiently settled for us to resolve both legal questions. 2
Nonetheless, the parties agree that, should this Court determine 3
otherwise, certification is the appropriate course. For the reasons 4
described below, we believe that the legal questions presented by 5
this case would more appropriately be answered by the New York 6
Court of Appeals. 7
Before certifying questions to the Court of Appeals, we must 8
first answer three others: (1) “whether the New York Court of 9
Appeals has addressed the issue and, if not, whether the decisions of 10
other New York courts permit us to predict how the Court of 11
Appeals would resolve it”; (2) “whether the question is of 12
importance to the state and may require value judgments and public 13
policy choices”; and (3) “whether the certified question is 14
determinative of a claim before us.” Griffin, 835 F.3d at 293–94 15
(internal quotation marks omitted). 16

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34
In our view, all three factors weigh in favor of certification. 1
First, as described in detail in Parts II and III, supra, we believe there 2
is an absence of authoritative guidance concerning both legal 3
questions. 4
Second, these questions are plainly of great importance to the 5
State. Whether a public benefit corporation such as BPCA is 6
sufficiently independent from the State and may therefore raise a 7
constitutional challenge to State legislation involves competing 8
policy concerns better addressed by the New York Court of Appeals. 9
See Schoenefeld v. New York, 748 F.3d 464, 470 (2d Cir. 2014) (asserting 10
that such policy concerns “should not be ceded to a federal court of 11
appeals when it is unnecessary to do so in the first instance”); see also 12
City of New York, 655 N.E.2d at 654 (observing “extreme reluctance of 13
courts to intrude in the political relationships between the 14
Legislature, the State[,] and its governmental subdivisions”). 15
Whether the constitutionality of a revival statute should be judged 16

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35
under the “serious injustice standard” or more lenient 1
“reasonableness” standard likewise requires a series of “value 2
judgments and public policy choices.” See Griffin, 835 F.3d at 294. 3
Finally, these questions are determinative of the present 4
litigation. If the particularized‐inquiry test applies, and if BPCA is 5
judged to be sufficiently independent from the State, then the 6
traditional capacity‐to‐sue rule will not attach and BPCA will be free 7
to raise its constitutional challenge. However, if the particularized‐ 8
inquiry test does not apply, or if it applies but BPCA is deemed to be 9
indistinguishable from the State for the purpose of challenging a 10
State statute, then BPCA will be subject to the traditional capacity‐ 11
to‐sue rule and—unless it can prove that it falls within one of the 12
rule’s four limited exceptions—BPCA’s constitutional challenge will 13
be dismissed. As to the merits of BPCA’s due process challenge, the 14
legal standard by which that challenge is to be judged will in all 15

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36
likelihood dictate the outcome of our analysis of the constitutionality 1
of Jimmy Nolan’s Law. 2
In light of these considerations, we certify the following 3
questions to the New York Court of Appeals pursuant to Second 4
Circuit Local Rule 27.2 and New York Court of Appeals Rule 500.27: 5
(1) Before New York State’s capacity‐to‐sue doctrine 6
may be applied to determine whether a State‐ 7
created public benefit corporation has the capacity 8
to challenge a State statute, must it first be 9
determined whether the public benefit corporation 10
“should be treated like the State,” see Clark‐ 11
Fitzpatrick, Inc. v. Long Island R.R. Co., 516 N.E.2d 12
190, 192 (N.Y. 1987), based on a “particularized 13
inquiry into the nature of the instrumentality and 14
the statute claimed to be applicable to it,” see John 15
Grace & Co. v. State Univ. Constr. Fund, 375 N.E.2d 16
377, 379 (N.Y. 1978), and if so, what considerations 17
are relevant to that inquiry?; and 18
(2) Does the “serious injustice” standard articulated in 19
Gallewski v. H. Hentz & Co., 93 N.E.2d 620 (N.Y. 20
1950), or the less stringent “reasonableness” 21
standard articulated in Robinson v. Robins Dry Dock 22
& Repair Co., 144 N.E. 579 (N.Y. 1924), govern the 23
merits of a due process challenge under the New 24
York State Constitution to a claim‐revival statute? 25

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37
In certifying these questions, we do not bind the Court of 1
Appeals to the particular questions stated. Rather, the Court of 2
Appeals may expand these certified inquiries to address any further 3
question of New York law as might be relevant to the particular 4
circumstances presented in this appeal. In particular, if the Court of 5
Appeals decides that a particularized inquiry is required with 6
respect to the capacity to sue issue, we would welcome specific 7
guidance, should the Court wish to provide it, as to the appropriate 8
result of the inquiry in this particular case. This panel retains 9
jurisdiction and will consider any issues that remain on appeal once 10
the New York Court of Appeals has either provided us with its 11
guidance or declined certification. 12
CONCLUSION 13
It is hereby ORDERED that the Clerk of this Court transmit to 14
the Clerk of the New York Court of Appeals this opinion as our 15
certificate, together with a complete set of the briefs and the record 16

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38
filed in this Court. The parties shall bear equally any fees and costs 1
that may be imposed by the New York Court of Appeals in 2
connection with this certification. 3

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