New York State Court of Claims

New York State Court of Claims

RODGERS v. THE STATE OF NEW YORK, #2003-030-508, Claim No. 101505, Motion No. M-66007


Defendant's application for further extension of stay of already commenced trial of Claim by widow alleging violation of Labor Law §241(6) - first imposed on May 3, 2002 - denied. No longer just to continue stay, which had been imposed pursuant to an Order of Rehabilitation from Pennsylvania Court enjoining all actions against Legion Insurance Company and its insureds, based upon comity principles and Uniform Insurer's Liquidation Act (UILA). New York State is a named additional


Case Information

JESSICA M. RODGERS, Individually and as Administratrix of the Estate of IAN BASIL DELONG RODGERS, Deceased
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:
Third-party defendant's attorney:

Signature date:
January 16, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)



The following papers numbered 1 to 5 were read on Defendant's application, brought by

Order to Show Cause, for an extension of a stay first imposed by this Court on May 13, 2002,

and continued on July 9, 2002:

1,2 Order to Show Cause; Affirmation in Support of Order to Show Cause by John E. Vallely, Esq., of Pino & Associates, LLP counsel for the Defendant, State of New York, and accompanying exhibit

  1. Affirmation of John H. Fisher, Esq., of Powers & Santola, LLP, counsel for the Claimant
4,5 Filed Papers: Claim, Answer

After carefully considering the papers submitted, the prior Orders of this Court and the pertinent law, the application is disposed of as follows:

In the Interim Decision and Order containing this Court's initial determination granting a stay of the half-completed liability trial of this Claim - incorporated herein by reference - the Court noted that there would come a time when the imposition of a stay would no longer be just. See Rodgers v State of New York, (Ct Cl), Scuccimarra, J., May 13, 2002, UID No. 2002-030-038.[1]

The Commonwealth Court of Pennsylvania issued an Order on March 28, 2002[2] granting the Petition of the Insurance Commissioner of the Commonwealth of Pennsylvania to place Legion Insurance Company (hereafter Legion) - the Protective Liability and Commercial General Liability carrier for the general contractor, A. Servidone, Inc., and the entity paying for the defense of the State of New York - in "rehabilitation", effective April 1, 2002, pursuant to that state's laws. In addition to staying "all court actions...currently or hereafter pending against Legion....", the Order further stays "...[a]ll court actions, arbitrations and mediations currently or hereafter pending against an insured of Legion in the Commonwealth of Pennsylvania or elsewhere...for ninety (90) days from the effective date of this Order or such additional time as the Rehabilitator may request."[3] Out of deference to the Pennsylvania Court, this Court had granted an initial ninety (90) day stay and the subsequent extension.
The present application attaches a copy of an Order issued by the Commonwealth Court of Pennsylvania dated September 26, 2002 that extends the stay it had directed in paragraph 24 of its earlier Order dated March 28, 2002 for a period beginning September 28, 2002 and ending December 1, 2002. [Affirmation in Support of Order to Show Cause, Exhibit "A"] This most recent Pennsylvania Order indicates that a Liquidation Petition has been filed, and that a hearing was to take place with respect to that petition on some future date.

In the Affirmation in Support filed by counsel for the Defendant, counsel writes that as of October 24, 2002 a hearing had not been scheduled with respect to the liquidation petition.

Counsel for Claimant reminds the Court that the underlying claim is one for the wrongful death of the Claimant's decedent at a construction site on September 15, 1999; that the trial on the issue of liability had commenced on February 11, 2002 and, indeed, that Claimant had rested on February 15, 2002, when the trial was continued until April 22, 2002 for presentation of Defendant's case. On April 16, 2002, Counsel for the Defendant made the Court aware of the prohibitions contained in the Pennsylvania Court Order vis a vis Legion Insurance Company and its insureds. When the Court granted the ninety (90) day stay of the trial, and the subsequent ninety (90) day stay, it was anticipated that at least some movement would be had with respect to progress in Pennsylvania, or commencement of proceedings in New York State. Instead, it appears, matters may be even more prolonged if the insurance company is now involved in liquidation as opposed to rehabilitation. At this juncture, principles of fairness outweigh whatever principles of comity applied previously.

Counsel for Claimant correctly argues that the claim has been ready for trial since December 6, 2000. Any further extensions of the stay can only operate to the prejudice of Claimant, and would no longer be "just" within the meaning of §2201 Civil Practice Law and Rules. See, Haenel v November & November, 144 AD2d 298, 300 (1st Dept 1988); See also Stinson v Hance, ___F Supp ___, 2002 WL 31834464 (SDNY 2002). Witnesses to the accident may become ill, or die, or their memories may become less acute. The Claimant, Jessica Rodgers, is a widow deprived of the benefit of her husband's support since his death in 1999. Whatever goals she may have had in terms of pursuit of a higher education - referred to in Counsel's Affirmation - have been sidetracked by the necessity of earning a reasonable income. This is a bifurcated trial. How the Commonwealth of Pennsylvania resolves Legion's liquidation is only peripherally - if at all - impacted by resolution of liability against Defendant.

As noted in this Court's Interim Decision and Order, it is the State of New York who is the Defendant in this action: not the insurance company. As such, the Attorney General of the State of New York has the primary responsibility to appear and defend, whatever contractual arrangements may have been made. See §63 Executive Law; Beedenbender v State of New York, 100 Misc 2d 482, 483 (Ct Cl 1979).

It is also noted that by its terms, the most recent sixty-four (64) day stay issued by the Pennsylvania court expired on December 1, 2002.

Accordingly, Defendant's application for a stay of the trial of this matter is hereby, in all respects, DENIED. The continued liability trial shall resume on Monday, May 19, 2003, at 10:00 a.m.

January 16, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Stay originally entered by this Court on May 13, 2002 was extended to October 2, 2002 by Order filed July 19, 2002. The present application looks for an extension of this most recent stay, extended pending the Decision on this Order to Show Cause.
[2] See, Affirmation in Support by Brian W. Colistra, Esq., Pino & Associates, LLP, counsel for Defendant State of New York, dated April 16, 2002, Exhibit "A".
[3] Id, ¶24.