[103 NJSuper Page 396] Defendant Palisades Interstate Park Commission (hereinafter Commission) moves under R.R. 4:12-2(a) and (b) for an order quashing the service of the
summons and complaint upon it on the ground that Superior Court of New Jersey lacks jurisdiction over the subject matter and of this defendant on the grounds herein discussed, there being no objection raised to the service of process.
On the return of the motion defendant Clarke & Rapuano, Inc. appeared and through counsel joined in the arguments advanced by plaintiff and contained in its brief opposing the motion. This defendant further indicated it was not objecting to the hearing of the motion because it had not been served as one of the parties with a notice of the motion.
This litigation arises out of a public improvement contract, known as B.M.-76 dated February 10, 1967, between defendant Commission and plaintiff. The work to be performed thereunder was the demolition of certain buildings situated on Iona Island in Rockland County, N.Y., in preparation for the recreational development of the area concerned.
A summons and complaint was served by registered mail upon the Commission on April 11, 1968 under R.R. 4:4-5(b). The three counts of the complaint directed against the Commission are based on an implied contract for extra work, alleged fraud, negligence, and misrepresentation in supplying certain pre-bid information. Co-defendant Clarke & Rapuano, Inc., a New York corporation, with offices at 830 Third Ave., New York City was the firm of consulting and supervising engineers and architects employed by the Commission in the project, the subject matter of the contract. It has raised no objection to the service of process.
The Commission was created by interstate compact entered into between the States of New York and New Jersey on June 2, 1937, pursuant to chapter 170 of the Laws of the State of New York for the year 1937 (Conservation Law, McKinney's Consol. Laws, c. 65, § 745 et seq.) and chapter 148 of the Laws of New Jersey for the year 1937 (N.J.S.A. 32:17-1 et seq.). The consent of Congress was received under Joint Resolution No. 65 of August 19, 1937, chapter 706, 50 Stat. 719.
Article II of the compact (N.J.S.A. 32:17-4) creates a body corporate and politic and provides that "the commission shall have power to sue and be sued."
The contract referred to and brought into question through this litigation resulted from specifications and requests for bids advertised in New York State, executed in New York State and totally performed in New York State. The total amount of the consideration in the contract has been or will be paid out of the appropriations by the Legislature of the State of New York to the Commission. Plaintiff is a corporation of the State of New Jersey with its principal office at 52 Commerce St., Springfield, N.J. The Commission is under the aforementioned compact, a bi-state body politic and instrumentality of the States of New York and New Jersey.
It is the contention of the Commission that as an instrumentality of the sovereign State of New York, performing governmental functions on behalf of that state, it is entitled to governmental immunity against suit since there is no "express waiver" of such immunity contained in the compact or under the laws of New York. It points to certain legislative enactments that indicate an intention on the part of the New York Legislature of not waiving the immunity and that the Commission continue to be an agency or instrumentality of the state, specifically referring to section 745 of the Conservation Law of New York, as amended by chapter 663 of the Laws of 1939 of that state, which provides that the Commission
"* * * shall continue in the division of parks in the conservation department in so far as lands in Palisades Interstate Park lie within this state, said Palisades Interstate park commission by said compact having succeeded to the rights, powers, duties and obligations of the board of commissioners of Palisades interstate park, a body politic created pursuant to chapter one hundred seventy of the laws of nineteen hundred, in the manner and to the extent provided in said compact."
Under the provisions of section 672 of the Conservation Law of New York, the Commission is the ...