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Supreme Court, Appellate Division, Second Department, New York.

Jeanne H. MORRISON, Appellant, v. BUDGET RENT A CAR SYSTEMS, INC., et al., Respondents.

Decided: April 28, 1997

Before ROSENBLATT, J.P., and RITTER, FRIEDMANN and FLORIO, JJ. Andrew Rosner, Mineola, for appellant. Gladstein & Isaac, New York City (Harvey Gladstein, Emily Diamond, and Brian J. Isaac, of counsel), for respondents.

The case before us involves threshold questions of jurisdiction and the waiver of jurisdictional defenses.   We are also called upon to consider another State's sovereign immunity statute and the issues that it presents in the realms of the Full Faith and Credit clause of the United States Constitution and interstate comity.

The case grew out of a two car accident that occurred in New York State.   The plaintiff was driving one car;  the other car was occupied by the defendant Mark A. Lucas (the driver), and his coemployee, the defendant Charles S. Whisnant, who had leased the car from the defendant Budget Rent A Car Systems, Inc.1 The accident occurred in Suffolk County after Lucas and Whisnant travelled into New York State, within the scope of their employment for the defendant University of South Carolina.   The plaintiff commenced the action by filing the summons and complaint with the Clerk of the Supreme Court, Suffolk County, following which the plaintiff effectuated service on the defendants in accordance with Vehicle and Traffic Law § 253 (see also, CPLR 302[a] [2];  Siegel N.Y. Prac § 97, at 147 [2d ed] ).

In written stipulations, the law firm representing the defendants twice agreed to “waive the affirmative defense of lack of jurisdiction” in exchange for two extensions of their time to answer.   In their answer, however, the defendants raised the affirmative defenses of lack of subject matter jurisdiction and lack of personal jurisdiction, notwithstanding the stipulations.   After the plaintiff rejected the answer, the defendants moved to compel the plaintiff to accept it and to vacate the stipulations.   The plaintiff cross-moved to strike both affirmative defenses on the ground that the defendants had waived them, and on the further ground that the affirmative defenses were insufficient as a matter of law.   The Supreme Court denied the plaintiff's motion in its entirety, and granted the defendants' motion to compel the plaintiff to accept the answer, thus keeping the affirmative defenses alive.   As limited by her brief,2 the plaintiff has appealed from so much of the order as denied that branch of her cross motion which was to strike the affirmative defenses and granted the defendants' motion to compel her to accept the defendants' answer, which included the challenged affirmative defenses.

The defendants acknowledge that their attorneys entered into two written stipulations by which they agreed to “hereby waive the affirmative defense of lack of jurisdiction” in exchange for extensions of time to answer the complaint.   They claim, however, that their attorneys-the same attorneys who represented them in the stipulations, on the motion, the cross motion, the answer, and on this appeal-had no authority to stipulate as they did.   They also claim that these attorneys improvidently stipulated away what the defendants now assert to be complete defenses under the South Carolina Tort Claims Act (see, Code of Laws of South Carolina § 15-78-10 et seq.) by which, they assert, “South Carolina University [sic], its agents, servants, and employees, cannot be sued outside of the bounds of South Carolina”.   In essence, they contend that the defendants may not be sued in New York, that they are protected by sovereign immunity, and that their stipulations should be undone.   For reasons that follow we hold that the affirmative defenses must fail.


The plaintiff's primary argument is that the stipulations are enforceable while the defendants seek to be relieved of the stipulations, claiming that they were entered into improvidently.

 Stipulations are favored by the courts and are not lightly cast aside (see, Matter of Galasso, 35 N.Y.2d 319, 321, 361 N.Y.S.2d 871, 320 N.E.2d 618;  see also, Perrino v. Bimasco, Inc., 234 A.D.2d 281, 651 N.Y.S.2d 53).  In Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178, the Court of Appeals held that a stipulation was binding on a client even though it exceeded the attorney's actual authority.   The court recognized that strict enforcement of stipulations “not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v. State of New York, supra, at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   Thus, the court concluded that “[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock v. State of New York, supra, at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   The courts therefore have vacated stipulations when the stipulating attorney lacked both actual and apparent authority (see, Matter of Dayho Motel v. Assessor of the Town of Orangetown, 229 A.D.2d 435, 645 N.Y.S.2d 87), but will, however, enforce written stipulations when the attorney has apparent authority to enter into a stipulation (see, Javarone v. Pallone, 234 A.D.2d 814, 651 N.Y.S.2d 664;  Ryerson v. Ryerson, 208 A.D.2d 914, 618 N.Y.S.2d 81).

The range of issues to which parties may stipulate is broad-“it lies within the power of the litigants to stipulate to virtually anything concerning their litigation” (McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C2104:1, at 559-560).  Hallock v. State of New York, supra has been applied to enforce written stipulations in a wide variety of circumstances (see, e.g., Matter of Stark, 233 A.D.2d 450, 650 N.Y.S.2d 608 [stipulation waiving party's interest in an estate];  Meyer v. Meyer, 228 A.D.2d 955, 645 N.Y.S.2d 105 [stipulation agreeing to submit all further disputes to an arbitrator];  McAllan v. 124-128 West 134th St. Tenants Assoc., 227 A.D.2d 352, 643 N.Y.S.2d 70 [plaintiff's stipulation to dismiss a cause of action];  Matter of Lois F., 209 A.D.2d 856, 618 N.Y.S.2d 920 [stipulation agreeing that individual was incompetent and appointing committee for her];  Ryerson v. Ryerson, 208 A.D.2d 914, 618 N.Y.S.2d 81, supra [stipulation providing for judicial sale of property];  Matter of Infosino v. Infosino, 204 A.D.2d 324, 611 N.Y.S.2d 598 [stipulation to limit husband's obligation to provide medical insurance coverage for wife];  Henry v. Gutenplan, 197 A.D.2d 608, 604 N.Y.S.2d 757 [stipulation discontinuing action];  Dousmanis v. Joe Hornstein, Inc., 181 A.D.2d 592, 581 N.Y.S.2d 327 [stipulation waiving Statute of Limitations defense];  Greenberg v. Greenberg, 150 A.D.2d 429, 540 N.Y.S.2d 736 [stipulation regarding payment of a money judgment] ).

 We are satisfied that the stipulations before us were both bargained for and properly based on the apparent authority of the defendants' attorneys.   Their enforceability turns on the extent to which a party, through its attorney, may waive jurisdictional defenses.


The defendants stipulated to waive the affirmative defense of lack of “jurisdiction”, but later interposed affirmative defenses as to both personal jurisdiction and subject matter jurisdiction.   Thus, at the outset it is important to distinguish between subject matter jurisdiction and personal jurisdiction, particularly with regard to the question of waivability.

As the late Chief Judge Breitel noted in Lacks v. Lacks, 41 N.Y.2d 71, 74, 390 N.Y.S.2d 875, 359 N.E.2d 384, “[j]urisdiction is a word of elastic, diverse, and disparate meanings” that may have caused its share of confusion (see also, Nuernberger v. State of New York, 41 N.Y.2d 111, 117-118, 390 N.Y.S.2d 904, 359 N.E.2d 412).   In its most basic sense, the term has long been applied as evincing the power to adjudge (see, Hunt v. Hunt, 72 N.Y. 217, 228) which bespeaks subject matter jurisdiction (see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503;  Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578).   It has also long been used to describe the judicial power to enforce a judgment and to bind a party over whom it has a legal hold (see, Reed v. Chilson, 142 N.Y. 152, 36 N.E. 884), a concept that relates to personal jurisdiction (see, Masten v. Olcott, 101 N.Y. 152, 4 N.E. 274).

As with members of an extended family, these two types of jurisdiction will appear at many of the same functions, and have, on occasion, been mistaken for one another.   They are different, however, in their availability and their character.   The United States Supreme Court has described personal jurisdiction as going to a court's power to exercise control over the parties, as opposed to subject matter jurisdiction, which is an “absolute [stricture] on the court”, in terms of its statutory or constitutional capacity to adjudicate particular types of suits (Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2715, 61 L.Ed.2d 464;  see also, Reynolds v. Stockton, 140 U.S. 254, 268, 11 S.Ct. 773, 777, 35 L.Ed. 464; 1 Casid, Jurisdiction in Civil Actions § 1.01[1] et seq. [2d ed];  Restatement of the Law [Second], Conflict of Laws, § 105, at 316).

 In New York, the authority of the courts to adjudicate classes of cases derives ultimately from article VI of the New York Constitution.   The constitutional limits that are placed upon particular courts define their authority and, hence, their subject matter jurisdiction, so that no New York court may exercise powers beyond those granted by the New York Constitution and the implementational statutes (see, e.g., Lincoln First Bank v. Sanford, 173 A.D.2d 65, 579 N.Y.S.2d 781;  Wikarski v. State of New York, 91 A.D.2d 1174, 459 N.Y.S.2d 143;  Matter of Walker v. Walker, 86 N.Y.2d 624, 629, 635 N.Y.S.2d 152, 658 N.E.2d 1025;  Marine Midland Bank v. Bowker, 89 A.D.2d 194, 456 N.Y.S.2d 243, affd. 59 N.Y.2d 739, 463 N.Y.S.2d 441, 450 N.E.2d 247;  Matter of Byrnes v. County of Monroe, 122 A.D.2d 549, 505 N.Y.S.2d 473).

Even the New York State Supreme Court, which has been called a court of general “unlimited and unqualified jurisdiction” (Matter of Fry v. Village of Tarrytown, supra, at 718, 658 N.Y.S.2d 205, 680 N.E.2d 578 quoting Kagen v. Kagen, 21 N.Y.2d 532, 537, 289 N.Y.S.2d 195, 236 N.E.2d 475;  see also, Murphy v. Milonas, 234 A.D.2d 109, 650 N.Y.S.2d 729) may not entertain actions over which it lacks subject matter jurisdiction (see, e.g., Matter of Schulz v. State of New York, 86 N.Y.2d 225, 630 N.Y.S.2d 978, 654 N.E.2d 1226, cert. denied 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305;  Nominee Realty v. State of New York, 233 A.D.2d 426, 650 N.Y.S.2d 281).   The same holds true for the Appellate Divisions (see, e.g., Central Hudson Gas & Elec. Corp. v. Newman, 35 A.D.2d 989, 317 N.Y.S.2d 887;  Shabazz v. State of New York Workers' Compensation Bd., 133 A.D.2d 285, 518 N.Y.S.2d 363) and the Court of Appeals (see, Inland Vale Farm Co. v. Stergianopoulos, 65 N.Y.2d 718, 719, n. *, 492 N.Y.S.2d 7, 481 N.E.2d 547).

Accordingly, courts have been held to lack subject matter jurisdiction when, for example, they act beyond their monetary limitations (see, Marine Midland Bank v. Bowker, supra), their geographical limitations (see, People v. Epstein, 47 A.D.2d 661, 364 N.Y.S.2d 38), or their juridical limitations, as in the incapacity of certain courts to entertain actions for declaratory relief (see, Abed v. Zach Assoc., 124 A.D.2d 531, 507 N.Y.S.2d 676) or CPLR article 78 relief (see, Matter of Leonora M., 104 A.D.2d 755, 480 N.Y.S.2d 479;  Matter of Naima C., 39 A.D.2d 964, 333 N.Y.S.2d 630).   A State court may also lack subject matter jurisdiction in cases of Federal preemption (see, Eastdil Realty v. Gallagher, 152 A.D.2d 478, 543 N.Y.S.2d 453), in matters of religious doctrine and practice (see, Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d 136, cert. denied 464 U.S. 817, 104 S.Ct. 76, 78 L.Ed.2d 88), or if there is a lack of justiciability (see, Matter of New York State Inspection, Security & Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 241 n. 3, 485 N.Y.S.2d 719, 475 N.E.2d 90).

Personal jurisdiction, on the other hand (sometimes referred to as “in personam jurisdiction”),3 also affects the court's powers, but, broadly speaking, it relates to the court's power over parties as opposed to its power over cases.   Because personal jurisdiction deals with the way in which courts gain and exercise their hold on parties, the doctrine has long been bound up not only with due process criteria in relation to in-State service of process (see, Townsend v. Hanks, 140 A.D.2d 162, 527 N.Y.S.2d 415), but with sensibilities involving the exercise of jurisdiction by the courts of one State over nonresidents (see, Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631).

In practice, personal jurisdiction issues often center around the viability of a State's “long-arm” statute (see, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404;  Keeton v. Hustler Magazine, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790), and questions of notice and the opportunity to defend (see, D.H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124;  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865).

 In a classic statement of the principle, a State court's assertion of personal jurisdiction must comport with “ ‘traditional notions of fair play and substantial justice’ ” (International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278).   Unlike limits on subject matter jurisdiction, the interest that a limitation on personal jurisdiction protects is an individual one-a personal one by definition-of not being subject to the binding judgments of the court (see, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565-566, 62 L.Ed.2d 490;   Van Cauwenberghe v. Biard, 486 U.S. 517, 526, 108 S.Ct. 1945, 1951-1952, 100 L.Ed.2d 517).   Thus, if a State through its court system is to reach out and touch someone, i.e., bind that person by a judgment issued by that State's courts, it may only do so if it satisfies due process criteria (see, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628;  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528).

 Although challenges to subject matter jurisdiction and personal jurisdiction are both addressed in CPLR 3211 (see, CPLR 3211[a][2] for subject matter jurisdiction, and CPLR 3211[a][8] for personal jurisdiction), a challenge to personal jurisdiction is more easily relinquished than a challenge to subject matter jurisdiction (see, Interlink Metals & Chems. v. Kazdan, 222 A.D.2d 55, 644 N.Y.S.2d 704;  see also, L. 1996, ch. 501, § 1)-a consideration that bears on the defendants' stipulations.   As such, a defense based on lack of personal jurisdiction may be waived (see, Interlink Metals & Chems. v. Kazdan, supra) or negotiated away by stipulation (see, Milbank v. Lauersen, 188 A.D.2d 644, 592 N.Y.S.2d 261).   For years, the commentators have even suggested that it is good practice by plaintiffs to exact the personal jurisdiction waiver as a quid pro quo in exchange for extensions of time to answer (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3211:54, at 74;  Siegel, The Urgency of Timing the Adjudication of Jurisdictional Objections, 276 N.Y. St Law Digest 1 [Dec.1982];  Fryburg, Outside Counsel, The Process of Personal Service of Process, NYLJ Dec. 18, 1996, at 1, col 1, at 4, col 5).

 If, however, a court lacks subject matter jurisdiction, the parties may not confer it on the court (see, Graham v. New York City Hous. Auth., 224 A.D.2d 248, 637 N.Y.S.2d 701;  Strina v. Troiano, 119 A.D.2d 566, 500 N.Y.S.2d 736) and it may not be created by laches or estoppel (see, Matter of Anthony J., 143 A.D.2d 668, 532 N.Y.S.2d 924;  Nuernberger v. State of New York, 41 N.Y.2d 111, 390 N.Y.S.2d 904, 359 N.E.2d 412, supra).  More importantly in the case before us, we recognize that when a court lacks subject matter jurisdiction it may not acquire it by waiver (see, Matter of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 217 N.E.2d 639, cert. denied 385 U.S. 899, 87 S.Ct. 204, 17 L.Ed.2d 131).  “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” (Editorial Photocolor Archives v. Granger Collection, 61 N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365).

 For these reasons, we conclude that the defendants could and did stipulate away the defense of lack of personal jurisdiction, but that their stipulation to waive the defense of subject matter jurisdiction was legally inoperative.


Having made these distinctions, we turn to the question of whether the defendants' claim of sovereign immunity falls under the purported defense of lack of personal jurisdiction (CPLR 3211[a][8] ), which the defendants have waived, or subject matter jurisdiction (CPLR 3211[a][2] ), which is not amenable to waiver.   More often than not, the designation of a defense as falling under the rubric of personal jurisdiction as opposed to subject matter jurisdiction is trouble free.   This is not so when sovereign immunity is involved.

 In a number of instances courts have referred to the concept of sovereign immunity as preventing the exercise of “personal jurisdiction” over the sovereign (see, e.g., State Div. of Human Rights [Geraci] v. New York State Dept. of Correctional Servs., 90 A.D.2d 51, 61, 456 N.Y.S.2d 63;  Colombo v. Dorrity, 115 N.C.App. 81, 443 S.E.2d 752;  see also, Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F.Supp. 953; 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3211.10,

at 32-61).   This is due, no doubt, to the entirely understandable rationale that if a would-be plaintiff is not permitted to sue the sovereign, the plaintiff can gain no personal “hold” on it of the type necessary to enforce a judgment.   Nevertheless, for cases in which there are consequences that attach to the distinction between personal jurisdiction and subject matter jurisdiction, it is more appropriate, as between the two, to characterize a sovereign immunity bar as one that entails a lack of subject matter jurisdiction.   Our conclusion is reinforced by the language of the Court of Appeals in Brown v. State of New York, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129, in which it measured the State's immunity in terms of the subject matter jurisdiction of the Court of Claims (see also, Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441).4  There is also the question of sequence.   As to this there is clear authority that the doctrine of sovereign immunity is invoked only after the New York court has acquired personal jurisdiction over the parties (see, Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574, 579, 427 N.Y.S.2d 604, 404 N.E.2d 726;  Vicente v. State of Trinidad & Tobago, 42 N.Y.2d 929, 397 N.Y.S.2d 1007, 366 N.E.2d 1361).

We conclude that in the case before us the proffered sovereign immunity bar entails the affirmative defense of lack of subject matter jurisdiction.   Because that is so, and because the defendants' waiver of subject matter jurisdiction was inoperative, the plaintiff may not rely on the stipulations to defeat the affirmative defense of lack of subject matter jurisdiction.


The plaintiff contends, however, that even if we disagree with her as to the efficacy of the stipulations, both affirmative defenses must fail as a matter of law.   She argues that the South Carolina Tort Claims Act (Code of Laws of S.C. § 15-78-10 et seq.) (hereinafter SCTCA) is not designed to immunize the defendants from liability for torts allegedly committed in New York, and that, in any event, the SCTCA does not carry with it an entitlement to interstate comity.

The parties agree that for purposes of the SCTCA the University of South Carolina is synonymous with the government (SCTCA § 15-78-30[e] ).   It is also undisputed that the defendants Whisnant and Lucas were acting within the scope of their employment for the University (SCTCA § 15-78-30[i] ).

The purpose of the SCTCA, as set forth in its declaration of policy, is to provide for liability on the part of the State, but only to the extent that immunity is waived within the SCTCA (SCTCA § 15-78-20[b] ).  On its surface, SCTCA § 15-78-100 supports the plaintiff's claim that the SCTCA was not intended to foreclose by immunity those actions-such as the one before us-in which South Carolina State employees are sued in other State courts for torts committed in other States.

SCTCA 15-78-100(b) reads as follows:

“Jurisdiction for any action brought under this chapter is in the circuit court and brought in the county in which the act or omission occurred” (emphasis added).

“All other immunities applicable to a governmental entity” are preserved (SCTCA § 15-78-20[b] ).  The SCTCA contains various requirements involving the filing of claims and their timeliness (SCTCA § 15-78-80), a cap on liability (SCTCA § 15-78-120), and other procedural provisions.   In its introductory discussion of immunity (SCTCA § 15-78-20 [a] ), the SCTCA does not distinguish between suits brought against South Carolina in its own courts and suits brought against South Carolina in other State courts.

But another section of the SCTCA does speak to out-of-State suits against South Carolina State employees even though SCTCA § 15-78-100(b) seems to suggest that the SCTCA is a venue measure.   SCTCA § 15-78-20(e) reads as follows:

“Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina”.

This provision refers to two distinct varieties of immunity, that differ in source, concept, and implication.

It is well known that for centuries sovereigns have enjoyed the absolute right to immunize themselves from suits within their own courts (see, Pollack and Maitland, The History of English Law, at 515 [2d ed 1923] ).   This is true of the United States (see, United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058;  United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171), and it is also true of the States of the union (see, Railroad Company v. Tennessee, 101 U.S. 337, 25 L.Ed. 960;  ex Parte State of New York No. 1, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057).   New York has availed itself of sovereign immunity except to the extent that it has waived it (see, Court of Claims Act, § 8;  Glassman v. Glassman, 309 N.Y. 436, 440, 131 N.E.2d 721;  Koerner v. State of New York, Pilgrim Psychiatric Center, 62 N.Y.2d 442, 448, 478 N.Y.S.2d 584, 467 N.E.2d 232;  see generally, 21 Carmody-Wait 2d, NY Prac § 126:111).5

The exercise of sovereign immunity by the States goes back to early recorded cases (see, State of New Hampshire v. Brosseau, 124 N.H. 184, 193, 470 A.2d 869, 875 [cases cited in concurring opinion] ), but because the practice of the States waiving their sovereign immunity is relatively recent, the question whether one State must accord immunity to another State was not decided by the United States Supreme Court until 1979 (see, Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416), close to two centuries after the Federal Constitution was ratified.

 South Carolina's waiver of its right to be sued in its own courts is not a waiver of the immunity that it enjoys under the Eleventh Amendment of the United States Constitution, which bars Federal courts from entertaining several types of suits against unconsenting States (see, Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132;  Welch v. Texas Dept. of Highways & Public Transportation, 483 U.S. 468, 472, 107 S.Ct. 2941, 2945, 97 L.Ed.2d 389).   By enacting the above-quoted declaration of immunity under SCTCA § 15-78-20(e), South Carolina was simply fortifying its stance under the Eleventh Amendment.   A State may waive its Eleventh Amendment protection from Federal court suits by citizens, but such waivers must be clearly spelled out (see, Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780;  Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-1361, 39 L.Ed.2d 662, supra).   In SCTCA § 17-78-20(e), South Carolina was doing no more or less than any State has a right to do, notably, telling the world that its waiver of immunity statute should not be taken as a forfeiture of its Eleventh Amendment right to be shielded from suits by citizens in Federal courts (see, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, n. 9, 104 S.Ct. 900, 907, n. 9, 79 L.Ed.2d 67;  Gibbons, The Eleventh Amendment and State Sovereign Immunity:  A Reinterpretation, 83 Colum L Rev 1889 [1983] ).

 No Eleventh Amendment question is present when a State is sued in another State by a resident of the other State (see, Maine v. Thiboutot, 448 U.S. 1, 9 n. 7, 100 S.Ct. 2502, 2507 n. 7, 65 L.Ed.2d 555).   The second part of SCTCA § 15-78-20(e), however, presents a very different declaration, one by which South Carolina states that its immunity waiver should not be taken as an invitation to be named as a defendant in another State court.   As to this, the matter must be determined in two spheres:  Federal constitutional law, as to which, ultimately, the United States Supreme Court is the arbiter;  and the concept of interstate comity, of which the forum State-here, New York-is the arbiter.


 If there is an obligation to accord sovereign immunity to another State, it must be founded on the Full Faith and Credit provisions of article IV of the United States Constitution, or on principles of interstate comity.   In Nevada v. Hall (440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416, supra), Nevada contended that the Full Faith and Credit clause required California to respect the limitations on Nevada's statutory waiver of immunity from suit.   That waiver, similar to the one in the South Carolina Tort Claims Act, gave its consent only to suits in its own courts.   The Supreme Court held that the Full Faith and Credit clause does require each State to give effect to the official acts of another State (see, Nevada v. Hall, supra, at 421, 99 S.Ct. at 1188), so that a judgment entered in one State must be respected in another provided that the first State had jurisdiction over the person and the subject matter, but that the Full Faith and Credit clause does not require a State to apply another State's law in violation of its own legitimate public policy (see also, Pacific Employers Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940;  Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521;  Greschler v. Greschler, 51 N.Y.2d 368, 434 N.Y.S.2d 194, 414 N.E.2d 694).

 That being so, the defendants further contend that in conformity with principles of comity, New York should abide South Carolina's immunity statute.   Comity differs from Full Faith and Credit in that the latter is an explicit constitutionally based provision involving relationships only among the States, whereas comity is based not on a constitutional provision, but on concepts such as harmony, accommodation, policy, and compatibility, in either an interstate context (see, Bank of Augusta v. Earle, 38 U.S. 519, 13 Pet. 519, 10 L.Ed. 274;  Iglehart v. Iglehart, 204 U.S. 478, 27 S.Ct. 329, 51 L.Ed. 575;  Stoddard v. Lum, 159 N.Y. 265, 53 N.E. 1108;  Nash, In Re Radical Interpretations of American Law:  The Relation of Law and History, 82 Mich. L Rev 274 [1983] ) or one involving other nations (see, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804;  Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95;  Murray v. Charming Betsy, 6 U.S. 64, 2 Cranch 64, 2 L.Ed. 208;  Von Mehren and Trautman, Recognitions of Foreign Adjudications:  A Survey and a Suggested Approach, 81 Harv L Rev 1601;  Paul, Comity in International Law, 32 Harv Int L J 1 [Winter 1991] ).

 In a case that involved precisely the same juxtaposition of immunity and comity, the New York Court of Appeals declined to accord comity to a Texas immunity statute (see, Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574, 427 N.Y.S.2d 604, 404 N.E.2d 726).   The defendants argue, correctly, that Ehrlich-Bober, which involved a commercial transaction, does not require us to reject the immunity by comity doctrine in all cases.   In our case, they claim, comity is called for.   We disagree, and we conclude that the similarity and design of the New York and South Carolina long-arm statutes supply a cogent basis for us to apply the Ehrlich-Bober precedent to the case before us, given the location of the accident, as well as the plaintiff's more significant relationship with the forum State, New York.

South Carolina, like New York, has a long-arm statute.   Under South Carolina's statutory scheme (Code of Laws of South Carolina §§ 15-9-350, 15-9-710, 15-9-750), its courts may gain personal jurisdiction over nonresidents for a variety of circumstances that resemble those in New York's CPLR 302.   South Carolina has employed its long-arm statute to gain personal jurisdiction over New York residents (see, Hammond v. Butler, Means, Evins & Brown, 300 S.C. 458, 388 S.E.2d 796, cert. denied sub nom. 498 U.S. 952, 111 S.Ct. 373, 112 L.Ed.2d 335;  Atlantic Soft Drink Co. of Columbia v. South Carolina Nat. Bank, 287 S.C. 228, 336 S.E.2d 876).   South Carolina also has a nonresident motorist statute similar to New York Vehicle and Traffic Law § 253.   Pursuant to South Carolina's statutory scheme, a nonresident who drives on its roads is subject to constructive service of process (see, Krueger v. Hider, 48 F.Supp. 708) and is thus amenable to South Carolina's jurisdiction.   The plaintiff in a South Carolina court may gain personal jurisdiction over a nonresident motorist by serving the South Carolina Director of the Department of Public Safety as attorney for the nonresident motorist, with provision for notice by mail to the defendant (Code of Laws of South Carolina § 15-9-350).   This procedure was challenged (under a predecessor statute) and was upheld by the Supreme Court of South Carolina (see, Ward v. Miller, 230 S.C. 288, 95 S.E.2d 482).   In this, the South Carolina scheme mirrors that of New York, and both fall within the Federal constitutional perimeters of Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 in relation to long-arm jurisdiction over nonresident motorists.   New York and South Carolina obviously both recognize that their residents will traverse each other's highways, that plaintiffs will bring personal injury actions against residents of each other's State (see, e.g., Unisun Ins. Co. v. Hertz Rental Corp., 312 S.C. 549, 436 S.E.2d 182), and their Legislatures have enacted provisions that are, in effect, reciprocal.   Statutes of this type have been enacted in virtually every State (see, 13 Blashfield, Automobile Law and Practice § 452.4, at 42 [rev 3rd ed];  61 CJS, Motor Vehicles, § 501, et seq., at 258-305).

There has been a growing body of post-Nevada v. Hall, supra jurisprudence following the Supreme Court's declaration that the decision of a State to accord sovereign immunity to another State is essentially a matter of comity.   Considering that the issue involves the sensitivities inherent in cooperative federalism, it is particularly apt for us to examine the holdings and criteria of other State court decisions in this field.

A number of State courts have refused to accord sovereign immunity by way of interstate comity, stating simply that their own State interests favor the assumption of jurisdiction (see, Hansford v. District of Columbia, 329 Md. 112, 617 A.2d 1057, cert. denied 509 U.S. 905, 113 S.Ct. 2997, 125 L.Ed.2d 690;  Peterson v. State of Texas, 635 P.2d 241 [Tex.]).  Other forum States have declined to extend comity considering that their own statutes afford a lesser degree of immunity-a fuller level of compensation-than does the defendant State (see, Radley v. Transit Authority of City of Omaha, 486 N.W.2d 299 [Iowa];  Struebin v. State, 322 N.W.2d 84 [Iowa], cert. denied 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 933), such that its residents should not be subordinated to the restrictions or immunity of the defendant State (see, Faulkner v. University of Tennessee, 627 So.2d 362 [Ala.], cert. denied University of Tennessee v. Faulkner, 510 U.S. 1101, 114 S.Ct. 943, 127 L.Ed.2d 233;  see also, Head v. Platte County, Mo., 242 Kan. 442, 749 P.2d 6;  Hernandez v. City of Salt Lake, 100 Nev. 504, 686 P.2d 251).  Another reason given for disfavoring immunity by comity is the efficiency of litigation in multiparty actions (see, Wendt v. Osceola County, Iowa, 289 N.W.2d 67 [Minn.]).

A frequently cited criterion entails a choice of law inquiry, as to which State has the more significant relationship to the parties and the action.   As to this, the occurrence of the actionable event or events in the forum State argues for the denial of immunity and the retention of jurisdiction, as does the greater degree of contact or consequence in the forum State (see, Haberman v. Washington Public Power Supply System, 109 Wash.2d 107, 159-160, 744 P.2d 1032, 1066, mod on other grounds 109 Wash.2d 107, 750 P.2d 254;  Laconis v. Burlington County Bridge Com'n, 400 Pa.Super. 483, 583 A.2d 1218;  Mianecki v. Second Judicial District Court, 99 Nev. 93, 658 P.2d 422).

When immunity through interstate comity has been extended it has usually been for reasons that do not fit our case.   When the contacts and the significant relationships, including the situs of the actionable event, are with the defendant State, an argument for comity may be made out (see, Reed v. University of North Dakota, 543 N.W.2d 106 [Minn.];  Flamer v. New Jersey Transit Bus Operations, 414 Pa.Super. 350, 607 A.2d 260;  Jackett v. Los Angeles Dept. of Water and Power, 771 P.2d 1074 [Utah];  see also, Ramsden v. State of Ill., 695 S.W.2d 457 [Mo.]).  So too, when the actions of the defendant State are not sufficiently directed toward the forum State (see, Hoskinson v. State of Cal., 168 Ariz. 250, 812 P.2d 1068, cert. denied 502 U.S. 981, 112 S.Ct. 582, 116 L.Ed.2d 608;  Simmons v. State, 206 Mont. 264, 670 P.2d 1372).

In other instances forum States, when comparing their immunity statutes with those of the defendant States, have concluded that the circumstances are such that the denial of immunity by comity would result in forum shopping (see, Newberry v. Georgia Dept. of Industry & Trade, 286 S.C. 574, 336 S.E.2d 464) or that the forum State's interests would not be disserved by according immunity through comity (see, Clement v. State, 524 N.E.2d 36 [Ind.];  University of Iowa Press v. Urrea, 211 Ga.App. 564, 440 S.E.2d 203;  Beard v. Viene, 826 P.2d 990;  Schoeberlein v. Purdue University, 129 Ill.2d 372, 135 Ill.Dec. 787, 544 N.E.2d 283).

All of these themes support our conclusion.   Beyond that, and given the respective long-arm motorist statutes that exist in both New York and South Carolina, there is a particularly important consideration in our determination, notably whether a claim of this kind would be actionable in New York if it were the New York State employees who were alleged to have been negligent in causing an accident and injuries to South Carolinians driving in New York. Using that test, it is clear that under New York's Waiver of Immunity statute (Court of Claims Act § 8) any injured party would be free to bring an action against this State, based on the negligent acts of its employees, under the concept of respondeat superior (see, Jackson v. State of New York, 261 N.Y. 134, 184 N.E. 735, 62 N.Y. Jur 2d Government Tort Liability, § 21).   This is true, of course, in the case of motor vehicle accidents allegedly caused by New York State employees acting within the scope of their employment (see, Lundberg v. State of New York, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177;  Dooley v. State of New York, 254 App.Div. 381, 5 N.Y.S.2d 760, affd. 280 N.Y. 748, 21 N.E.2d 518).   Moreover, in waiving its immunity, New York does not distinguish between New York plaintiffs and nonresident plaintiffs (see, e.g., Tamm v. State of New York, 29 A.D.2d 601, 285 N.Y.S.2d 753, affd. 26 N.Y.2d 719, 308 N.Y.S.2d 878, 257 N.E.2d 55).

Lastly, we consider South Carolina's own decisional law on the subject.   In Melton v. Crowder, 317 S.C. 253, 452 S.E.2d 834, the Supreme Court of South Carolina declined to accord North Carolina immunity by comity when a North Carolina employee was alleged to have caused an accident, with ensuing injuries to the plaintiff, in South Carolina.

The defendants' reliance on sovereign immunity forms the basis of their challenge to New York's subject matter jurisdiction.   To the extent, however, that the defendants raise the defense of lack of personal jurisdiction as based on sovereign immunity, that defense must also fail as a matter of law, for the same reasons that the defense of lack of subject matter jurisdiction fails.   All of the considerations support the retention of jurisdiction and the dismissal of the affirmative defenses as a matter of law.

Accordingly, the order must be modified by deleting the provision thereof which denied that branch of the plaintiff's cross motion which was to dismiss the affirmative defenses of lack of subject matter and personal jurisdiction and substituting therefor a provision granting that branch of the plaintiff's cross motion.

ORDERED that the order is modified by deleting the provision thereof which denied that branch of the plaintiff's cross motion which was to dismiss the affirmative defenses of lack of subject matter and personal jurisdiction and substituting therefor a provision granting that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.


1.   By “defendants” we refer to the South Carolina defendants, namely, Lucas, Whisnant, and the University of South Carolina.

2.   In the cross motion, the plaintiff included a request for summary judgment on the issue of liability.   She has not addressed that point in her appeal and we consider it abandoned (see, Agee v. Ajar, 154 A.D.2d 569, 546 N.Y.S.2d 632;  Praeger v. Praeger, 162 A.D.2d 671, 557 N.Y.S.2d 394).

3.   The terms have been used interchangeably (see, e.g., Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132;  Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, cert. denied 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158;  Schultz v. Hyman, 201 A.D.2d 956, 607 N.Y.S.2d 824).   For anyone craving a distinction, see 1 Casid, Jurisdiction in Civil Actions, supra, at § 1.01(2).

4.   In the Federal arena there has been comment about the intimate relationship of the three concepts of subject matter jurisdiction, personal jurisdiction, and sovereign immunity (see, Norris v. State of Georgia, 522 F.2d 1006 (4th Cir.)) and the occasional need to unravel them (see, Maritime Intern. Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.Cir.), cert. denied 464 U.S. 815, 104 S.Ct. 71, 78 L.Ed.2d 84), given the “labyrinthine” character of the relationship (Note, Federal Jurisdiction and Procedure, 107 Harv L Rev 254, 264).

5.   Although the Eleventh Amendment does not employ the term “sovereign immunity”, the United States Supreme Court has held that the Eleventh Amendment, by which an “unconsenting state is constitutionally immune from suits by private citizens in federal courts” (Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv L Rev 61, 65 [1984] ), also “applies” to a Federal suit against a State by one of its own citizens (see, Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355-1356, 39 L.Ed.2d 662;  Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842;  Ex Parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 450, 52 L.Ed. 714).   For a critique as to the reach of the Eleventh Amendment, see, Shapiro, (op.cit.., at 71).

ROSENBLATT, Justice Presiding.


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