[129 NJSuper Page 438] At issue here is the extent to which the Port Authority of New York and New Jersey (Port Authority) may be subjected to injunction suits sanctioned by
the Attorney General of New Jersey pursuant to the discretion vested in him by N.J.S.A. 32:1-161 to waive that agency's sovereign immunity from suit.
The precise question is whether a private litigant, plaintiff Evans-Aristocrat Industries, Inc., shall be permitted to amend its complaint to assert a mandatory injunction claim against the third-party defendant Port Authority. The Attorney General of New Jersey has moved to intervene in this action for the express purpose of lending his name in order to enable plaintiff to litigate its injunction claim against the Port Authority. Resolution of the issue depends upon an interpretation of N.J.S.A. 32:1-61 which waives the sovereign immunity of the Port Authority in suits, actions or proceedings for orders or decrees restraining, enjoining or preventing the Port Authority from committing or continuing to commit any act or acts only where the Attorney General of New York or the Attorney General of New Jersey brings such suit, action or proceedings in his discretion on behalf of any person or persons who requests him to do so.
The issue arises in the context of the following factual background as alleged by plaintiff:
1. The Port Authority leases from defendant City of Newark (city) land used and occupied in the operation of Newark International Airport.
2. The lease documents between the city and the Port Authority require the latter, in connection with the expansion of the airport facilities recently undertaken and now being completed, to relocate any existing water main, sewer or drainage ditch deemed necessary, with the proviso that the city approve plans and specifications for any such relocated or redesigned facility.
3. Earthwork, filling and grading undertaken and performed incident to the expansion of the airport is alleged to have altered established drainage patterns in the southeastern sector of the city known as the Waverly District of the municipal sewerage system.
4. In connection with such expansion work the Port Authority constructed a pumping station designed to facilitate the drainage in the Waverly District and to prevent flooding. The pumping station was to assist the preexisting Waverly drainage ditch in carrying water collected from the Waverly District through the airport premises for discharge into Newark Bay.
5. Plaintiff operates a manufacturing plant at 768 Frelinghuysen Avenue in the City of Newark, within the Waverly District area intended to be served by said pumping station.
6. Subsequent to the commencement of the expansion of the airport facilities and following the construction of the pumping station, plaintiff's plant was flooded and substantially damaged on two different occasions, first in August 1967 and again in August 1971.
7. Plaintiff attributes the flooding and resultant damage to the alteration of the previously established Waverly District drainage pattern; to the clogging of the Waverly drainage ditch with debris allowed to accumulate by reason of inadequate maintenance; and to the failure by the city and the Port Authority to properly ...