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Characterizing the PCO in this manner has implications for the allocation of the burden of proof which should therefore fall on the complainant and not on the defendant and for the degree of deference that WTO judges have to pay to the rights and the prerogatives of the regulators in the domain of financial services. One of the most complete libraries on the web Kluwer Law Online is your online gateway to Kluwer Law International publications.

Volume 48 All rights reserved. Sign in via OpenAthens Sign in via your institution. Numerous plaintiffs brought suit against defendant drug manufacturers, alleging that they were injured by taking the drug diethylstilbestrol DES while pregnant. As the Court recognized, "due to the latent nature of DES injuries, many claims were barred by the Statute of Limitations before the injury was discovered" id.

The same statute also revived for one year causes of action for exposure to DES that had previously been time-barred id. The Court held, however, that it "need not light upon a precise test here," since the statute at issue would pass muster even under the purportedly stricter Gallewski standard:. The Second Circuit, in certifying this question, apparently read Robinson to hold that a statute will satisfy the State constitution so long as it is "a 'reasonable' exercise of the Legislature's power" In re World Trade Center Lower Manhattan Disaster Site Litig.

Our holding in Robinson was slightly more demanding than pure "reasonable[ness]": Robinson held that the Due Process Clause of the State Constitution is "satisfied if there was an apparent injustice which 'calls for [a] remedy,' and which is 'reasonable' and not 'arbitrary'" Hymowitz, 73 NY2d at , quoting Robinson, NY at A close reading of Gallewski reveals that it did not overrule or narrow Robinson.

To the contrary, it expressly reaffirmed the Robinson standard see NY at ["Here, as in the Robinson case, the 'extension of the time to bring. By elaborating that "[Robinson] may be read. Any purported dichotomy between Robinson's and Gallewski's holdings is illusory. First, there existed an identifiable injustice that moved the legislature to act. In Robinson, it was the plaintiffs' exclusive reliance on a provision of the workers' compensation law that was struck down by the United States Supreme Court see NY at ; in Gallewski, it was the occupation of the plaintiffs' countries of residence during World War II see NY at ; in Hymowitz and McCann, it was latent injuries caused by harmful exposure, which the plaintiffs were not able to attribute to an action or omission of the defendant until the statutory period to bring a claim had already expired see Hymowitz, 73 NY2d at ; McCann, AD at Second, in each case, the legislature's revival of the plaintiff's claims for a limited period of time was reasonable in light of that injustice.

A more heightened standard would be too strict. In the context of a claim-revival statute, there is no principled way for a court to test whether a particular injustice is "serious" or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government.

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While we have traditionally expressed an "aversion to retroactive legislation" Hodes v Axelrod, 70 NY2d , [] , of which claim-revival statutes are one species see Decker v Pouvailsmith, NY 1, [] , "we have noted that the modern cases reflect a less rigid view of the Legislature's right to pass such legislation" Hodes, 70 NY2d at ; see also Usery v Turner Elkhorn Mining Co.

Nonetheless, there must first be a judicial determination that the revival statute was a reasonable measure to address an injustice. We now arrive at our answer to the second certified question, as reformulated herein. The cases we have just discussed all express one and the same rule: a claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice.

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Accordingly, the first certified question should be answered in the negative and the second certified question, as reformulated, should be answered in accordance with this opinion. I write separately to expand on the majority's answer to the first certified question, and to explain why, in our answer to the second question, we should expressly adopt the federal rule, according to which claim-revival statutes do not raise due process concerns unless "lapse of time has []vested a party with title to real or personal property" Chase Securities v Donaldson, US , [].

With respect to the first certified question, I agree with the majority's comprehensive and well-reasoned analysis explaining that a public benefit corporation, like a municipal or local government entity, lacks capacity to sue unless the circumstances of the case support an exception to that rule. We have never stated that this list is exhaustive. While no "particularized inquiry" is necessary to determine whether a public benefit corporation should be treated like the state because "for purposes of our capacity bar, every public benefit corporation is the State" [majority op at 21] , when a public benefit corporation seeks to sue the State, a court must determine whether its suit fits into one of the previously identified exceptions or some other exception deemed appropriate under the particular facts of the case.

To reach that determination, a court must consider the common thread in the existing exceptions, which recognize the constitutional protections afforded state-created entities, as well as their legislative grant of authority. These exceptions are intended to ensure that state-created entities are not thwarted in achieving their constitutionally- and statutorily-mandated purposes within our democratic system of government.

The legislature may, of course, redefine, unchallenged, the powers and authority of a public benefit corporation Black River Regulating Dist. What it cannot do is prevent the corporation from exercising its authority to fulfill its statutorily-mandated purpose in compliance with the constitution and its enabling statutes. To determine what a public benefit corporation may do, courts must scrutinize the public benefit corporation's laws, purpose, and the constitutional and statutory scheme into which it fits.

As "[g]overnmental entities. Any capacity to challenge a State statute, then, "must be derived from the relevant enabling legislation or some other concrete statutory predicate" or, as relevant, our constitutional framework id.

Courts should therefore attend to the nature and purpose of the public benefit corporation seeking to bring suit, examining "the legislative [and constitutional] scheme" that encompasses it, with special attention to the public benefit corporation's "power[s] and responsibilit[ies]" Matter of City of New York v City Civ. Courts should look to the public benefit corporation's i organic legislation, ii other legislation, if any, that the corporation is charged with implementing, iii the public benefit corporation's "functional responsibilit[ies]" Community Bd.

The second certified question asks what standard governs the constitutionality of claim-revival statutes under our State Due Process Clause. I have no disagreement with the majority's analysis of these cases. However, I would go beyond harmonizing our holdings in prior claim-revival cases and take the opportunity this question presents to state expressly that a claim-revival statute is constitutional unless it deprives a party of a vested property interest.

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The United States Supreme Court has determined that "where lapse of time has not invested a party with title to real or personal property, a state legislature, consistently with the Fourteenth Amendment, may repeal or extend a statute of limitations, even after right of action is barred thereby, restore to the plaintiff [the] remedy, and divest the defendant of the statutory bar" Chase Securities Corp v Donaldson, US , [].

As the Supreme Court has explained:. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay.

They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate.


Their shelter has never been regarded as what now is called a 'fundamental' right or what used to be called a 'natural' right of the individual. Thus, the Court has explained that "the Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation.

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  5. What it does forbid is the taking of life, liberty or property without due process of law. Even under our more expansive State Due Process Clause see e. No such deprivation is at issue where a defendant seeks merely to cut short the time during which a plaintiff may sue. A defendant has no separate vested right in the timing of a lawsuit or the final date upon which a plaintiff may seek relief. Defendant may find it objectionable that the state legislature saw fit to provide plaintiffs more time to pursue their remedy, but because the legislature did not violate any fundamental right of the defendant in doing so, defendant has no grounds to legally challenge the claim-revival statute.

    Adopting the federal standard, which recognizes the legislature's authority to revive claims where defendant is not deprived of a vested interest, is logically, historically, and jurisprudentially sound.

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    The standard is easily met. It is not difficult to establish that a statute is "a reasonableness response. Certainly the judiciary is not the proper body to make the hard policy decisions behind these statutes. Instead, and appropriate to its position in our democratic system of government, the judiciary will defer to the legislative determination of what constitutes an injustice precisely because "there is no principled way for a court to test whether a particular injustice is 'serious' or whether a particular class of plaintiffs is blameless; [and] such moral determinations are left to the elected branches of government" majority op at Just as has been true every other time the Court has considered the constitutionality of a claim-revival statute, the rule announced by the majority will result in a finding that the statute does not deprive the defendant of due process.

    Rather than have a court attempt to balance policy considerations that are in fact consigned to the legislature, I would resolve the question directly and recognize the obvious: unless it impinges on a separate vested property right and not merely the hope of avoiding litigation, a claim-revival statute does not violate due process, because defendant has no fundamental right to a statute of limitations in perpetuity.

    I subscribe fully to the court's answer to the second certified question. I write separately because I do not view the first certified question as involving an issue of "capacity," even though a few of our decisions describe it that way. Nor do I view it as a question of when a public benefit corporation should be treated as if it were the state. The question, as I see it, is whether and under what circumstances a public benefit corporation can challenge a legislative act as unconstitutional. The answer to that question is derived from the structure of government and the roles of the coordinate branches.

    We have most often articulated that doctrine not as one of capacity, but of "standing" or "power," which comes closer to describing the forces at work here. The general presumption that legislatively created entities cannot challenge acts of the legislature derives from "the supreme power of the Legislature over its creatures" Black River Regulating Dist.

    That presumption is rooted in the structure of government; legislatively-created entities, such as public benefit corporations, are subservient political entities. An entity's power is given by the legislature, and "how long it shall exist or how it may be modified or altered belongs exclusively to the people to determine" id. Accordingly, it is the rare case when the entity may challenge an act of the legislature.

    Admittedly, our decisions have not always been clear in terminology; from time to time, we have muddied the waters. The appropriate response today, as requested by the United States Court of Appeals for the Second Circuit, is to clear away the mud. Incapacity to sue exists when there is some legal disability, such as infancy or lunacy or a want of title in the plaintiff to the character in which he sues.

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    The plaintiff was duly appointed receiver and has a legal capacity to sue as such, and, hence, could bring the defendants into court by the service of a summons upon them even if he had no cause of action against them. On the other hand, an infant has no capacity to sue, and, hence, could not lawfully cause the defendants to be brought into court even if he had a good cause of action against them. Incapacity to sue is not the same as insufficiency of facts to sue upon". Ward v Petrie, NY []. Capacity is defined as "the satisfaction of a legal qualification, such as legal age or soundness of mind, that determines one's ability to sue or be sued" Black's Law Dictionary [10th ed ], capacity.

    Capacity concerns "the litigant's power to appear and bring its grievance before the court" Community Bd. The capacity of governmental entities to sue can be either express or implied see 84 NY2d at ["Being artificial creatures of statute, [governmental] entities have neither an inherent nor a common-law right to sue.

    Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate"]. Thus, where the power to sue is expressly granted, an entity has capacity to sue or be sued; no further inquiry is required. Here, there is no question that the BPCA has the capacity to sue and be sued. Its enabling legislation specifically grants it that power, unlike the community board in Community Bd.

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    Indeed, if the BPCA lacked legal capacity, this lawsuit would not exist, and Jimmy Nolan's Law -- which extended the statute of limitations for actions against a public corporation -- would have been futile. Whether a natural person or artificial entity may sue or be sued is a question of capacity. Whether a governmental entity may sue to challenge a governmental action could properly be thought of as one of general justiciability, but equally could be expressed as one of standing, which is the way most of our decisions have framed it.

    Standing has two components: a jurisdictional component, so that if a party suffers no injury, it may not sue; and a prudential component, involving "rules of self-restraint," which includes the determination that a party is well-situated to bring an action on its own or on behalf of another see Society of Plastics Indus. We have cautioned that "the concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable," and that "[t]he concept of a lack of capacity.

    In the context of challenges brought by legislatively-created entities to actions of the legislature, we have usually described the issue as one of "power," "standing," or "status," rather than "capacity. In Hooker, the Appellate Division certified a question for appeal, casting it as: "Has the county of Albany legal capacity to bring this action?