New York Court of Appeals

Kathleen Henry v. New Jersey Transit Corporation

March 21, 2023

Summary

The Court dismissed the appeal because the defendant raised interstate sovereign immunity for the first time on appeal, making the defense unpreserved. The Court held that interstate sovereign immunity is waivable and resembles jurisdiction over a party rather than subject matter jurisdiction, so it does not fall within the exception to ordinary preservation rules. Because no preserved constitutional question was directly involved, the appeal as of right was unavailable.