New York State Court of Claims

New York State Court of Claims

THE NEW YORK & OGDENSBURG RAILWAY COMPANY, INC. v. THE STATE OF NEW YORK, #2003-028-545, Claim No. 107017, Motion No. M-66236


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 2, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion pursuant to CPLR 3211(a)(2), (7) and (8) to dismiss the Claim:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Joel L. Marmelstein filed December 20, 2002 (Marmelstein Affirmation) with annexed Exhibits 1-2;

2) Affirmation in Opposition of Francis J. Smith, Esq., filed February 7, 2003 (Smith Affirmation) with annexed Exhibits A-C; and

3) Claimant's Memorandum of Law.

Filed Papers: Claim filed December 2, 2002.

Defendant has timely moved by pre-answer motion to dismiss the Claim, which seeks indemnification, asserting, inter alia, that the Court lacks subject matter jurisdiction as the claim is premature (Marmelstein Affirmation ¶¶ 2 and 5). Claimant opposes the motion asserting that anticipatory or premature indemnification actions are permissible (Smith Affirmation ¶12; Claimant's Memorandum of Law, Point 1).

Claimant is a railroad corporation which operates its railroad on tracks owned by the Ogdensburg Bridge and Port Authority (OBPA) pursuant to a lease agreement between Claimant and OBPA (Smith Affirmation ¶ 4). Claimant's action in this Court for indemnification stems from an action presently pending in the Supreme Court, St. Lawrence County wherein one Sue Ellen Johnson has sued the Claimant for damages she allegedly sustained when her vehicle struck a dislodged rubber expansion joint. The accident occurred at the grade crossing in Ogdensburg where Claimant's right-of-way crosses State Route 37. That action, bearing Index Number 110243, is pending.

It is well settled that a claim for indemnification does not accrue until payment by the party seeking indemnity (see e.g. Bay Ridge Air Rights v State of New York, 44 NY2d 49, 54; Conley v Salt City Energy Venture, L.P., 234 AD2d 909; Tuckahoe v State of New York, Ct Cl, Ruderman, J., Claim No. 101627, Motion Nos. M-61473, CM-61961, UID #2000-010-054) and the parties do not disagree on this principle of law. Similarly, there is no dispute that Claimant has not been ordered to pay, nor has Claimant paid, any money to Sue Ellen Johnson as a consequence of the underlying Supreme Court action. By virtue of the foregoing, the claim presented herein has not yet accrued and therefore is not ripe for adjudication (see Bay Ridge Air Rights v State of New York, 44 NY2d 49; see also State of New York v Syracuse Rigging Co., 249 AD2d 758). However, whether an anticipatory claim for indemnification may be maintained in the Court of Claims, was left open when the Court of Appeals in Bay Ridge Air Rights v State of New York , 44 NY2d 49, stated
A determination that the claim has not yet accrued, however, would not necessarily end the matter. Another question is whether the Appellate Division correctly dismissed the claim as premature. A so-called "premature" action, better described as anticipatory, in which the plaintiff is not yet certain of his damages has, on occasion, been permitted (see Grant Co. v Uneeda Doll Co., 19 AD2d 361, 363-364, affd 15 NY2d 571). So, too, filings in the Court of Claims in advance of technical accrual have been held effective to preserve a party's rights against the State (Atlantic Mut. Ins. Co. v State of New York, 50 AD2d 356, 358, affd 41 NY2d 884; Matter of Johnson v State of New York, 49 AD2d 136, 137-138). Because Bay Ridge does not appeal from the dismissal, however, that question also need not be reached.

(id. at p 56). Claimant skirts this issue, relying principally upon State of New York v Syracuse Rigging Co., supra, which involved an attempt by the State to obtain indemnification from a subcontractor [Syracuse Rigging] on a bridge repair project when an employee of the subcontractor was injured and commenced an action in the Court of Claims for damages. During the pendency of the Court of Claims action, the State initiated an action in Supreme Court and moved for summary judgment on its indemnification claim. Supreme Court dismissed the State's action as premature. The Appellate Division, Third Department, after restating the black letter rule of law, noted that "[D]eparture from this rule may be warranted where the interests of justice and judicial economy so dictate (State of New York v Syracuse Rigging Co., supra at 760 [citations omitted])" but nevertheless affirmed the dismissal finding no reason to depart from the general rule (id.).

Claimant posits the real party in interest in the underlying Supreme Court action is the State and that if the Plaintiff is successful, "the entire liability should be shifted to the State" (Claimant's Memorandum of Law at p 3) and as such a conditional judgment is warranted.

Assuming arguendo an anticipatory action may be maintained in the Court of Claims, a proposition about which this Court has grave doubts[1], this Court is unpersuaded that either the interests of justice or judicial economy preclude dismissal of Claimant's action as premature. Assuming arguendo Claimant is correct and the entire liability attaches to the State, resolution of the indemnification question, in this Court's view, would result in a disincentive to Claimant to vigorously defend the underlying Supreme Court action. Unlike in the cases of Schwalm v County of Monroe, 158 AD2d 994 or Blair v County of Albany, 127 AD2d 950, both cited approvingly in Syracuse Rigging, the State can neither participate in the Supreme Court action as a third party defendant, nor is there an agreement that it defend or indemnify Claimant in that action (see Smith Affirmation, Exhibit A, §5.03 [Claimant is to indemnify OBPA]). As such, the real party in interest, as Claimant has phrased it, would be unable to actively protect its interests.

Accordingly, Defendant's motion is granted, and the claim shall be and hereby is dismissed without prejudice (see Bay Ridge Air Rights v State of New York, 44 NY2d 49).

June 2, 2003
Albany, New York

Judge of the Court of Claims

[1] None of the cited cases have permitted a premature claim in the Court of Claims.