New York State Court of Claims

New York State Court of Claims

NATIONAL UNION FIRE INSURANCE CO. v. THE STATE OF NEW YORK, #2001-014-517, , Motion No. M-62060


Synopsis


Application for permission to file a late claim is granted.

Case Information

UID:
2001-014-517
Claimant(s):
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Claimant short name:
NATIONAL UNION FIRE INSURANCE CO.
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-62060
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Lester Schwab Katz & Dwyer, LLPBy: Bruce Strikowsky
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant's application for permission to file a late claim: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition; Reply Affirmation. The proposed claim involves a personal injury action in which, it is alleged, the claimant, an insurance company, and the State Insurance Fund were co-insurers of the third party defendant. The claimant seeks permission to file a late claim for breach of contract, alleging that the State Insurance Fund has failed to indemnify it for an amount it paid on behalf of its insured in settlement of the personal injury claim, and for related attorneys fees.

Although the six month period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(4), this application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

The defendant opposes the application on the grounds that the delay, over five years, is not excusable, and that the claimant has not demonstrated that the claim appears meritorious.

The claimant has offered no excuse for the delay in filing a claim.

The defendant does not oppose this application on the basis of the statutory factors of notice or opportunity to investigate. Those factors are therefore presumed to weigh in the claimant's favor. See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024. Counsel for the defendant asserts that the defendant has been prejudiced "due to the passage of time and the fading of memories." Upon the record before the Court, the failure to file a timely claim or notice of intention has not resulted in substantial prejudice to the State.

The basis for the argument of counsel that the claim does not appear to be meritorious is that the defendant in the personal injury action was an additional insured under an endorsement to the claimant's insurance policy, so that the claimant should have defended the additional insured and had the impleader against the third party defendant dismissed. See, Pennsylvania General Insurance Company v Austin Powder Company, 68 NY2d 465. It is the claimant's position that the legal principle that an insurer "has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered" (Id., at 468), is inapplicable to the underlying personal injury action because the defendant was not, in fact, an additional insured under the facts of the case. "[T]he critical issue in ascertaining whether the antisubrogation rule applies" is whether the policy covers both insureds "for the damages arising out of the subject accident." McGurran v DiCanio Planned Development Corp., 216 AD2d 538, 539-540. While the defendant's position may ultimately constitute a defense to the claim, it does not at this stage on the record before the Court suffice to support the conclusion that the claim does not appear to be meritorious. See, Travelers Insurance Company v Commissioners of the State Insurance Fund, 227 AD2d 208.

It does not appear from the submissions that the claimant has any other available remedy.

The proposed claim contains the information set forth in Court of Claims Act §11(b).

Having considered the relevant statutory factors, Bay Terrace, supra, the balance of factors weigh in claimant's favor. It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim in the form in which it is annexed to the application as Exhibit E in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order.


February 20, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims