7
on the defense of sovereign immunity. I denied the motion at the time as premature,
ruling that the defenses were not supported by the pleadings or attached documents, and
ordered the parties to engage in limited factual discovery relevant to the issue of the
City's sovereign immunity defense. Having completed this discovery, the City now
renews its motion as a motion for summary judgment pursuant to Rule 56, Fed. R. Civ. P.
I now hold that under the New York Defense Emergency Act, N.Y. Unconsol. Law
§
9101 et seq. (McKinney 2002) (the "DEA"), the City is immune from liability, and the
Complaint against it is dismissed.
3
A. The New York City Office of Emergency Management
The City created OEM pursuant to Mayor Giuliani's Executive Order No.
30, dated March 19, 1996. See Exec. Order No. 30, dated March 19, 1996. Stating that a
primary purpose of the OEM was to oversee and implement the City's "civil defense"
and emergency preparedness functions, the Executive Order provided that the City "must
be prepared for and be able to coordinate rapid and effective responses to a wide range of
emergency situations." Id. The Order provided further that OEM was to be "headed by a
Director who shall serve as the local Director of Civil Defense, with the powers of a local
Director of Civil Defense under [the New York Defense Emergency Act]." Id. OEM's
functions, among others, were to establish and operate an emergency command center, to
respond to emergencies of any type, whether natural or man-made; to be an on-scene
coordinator; to ensure that the City was effective and efficient in using its resources; to
manage the moving of resources to emergency scenes more quickly; and to ensure that a
good recovery process was in place.
3
Because I hold that the City enjoys sovereign immunity under the New York Defense Emergency
Act, I decline to reach the issue of whether the City is also immune under the State and Local Natural and
Man-Made Disaster Preparedness Act, or under common law sovereign immunity.
