New York State Court of Claims

New York State Court of Claims

AUGER v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2005-013-002, Claim No. 94487, Motion No. M-69150


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:
Third-party defendant's attorney:
Signature date:
January 19, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On November 19, 2004, oral argument was heard and the following papers were read on Third-Party Claimant's motion for declaratory relief directing Third-Party Defendants to defend and indemnify the State of New York for any and all damages recovered by Claimants:

Order to Show Cause for Declaratory Relief, Affidavit and Exhibits Annexed

Third-Party Defendants' Affirmation dated October 8, 2004 and Exhibits Annexed

Third-Party Claimant's Reply Affidavit sworn to October 13, 2004

Supplemental Affirmation and Exhibits Annexed on Behalf of Third-Party Defendants

Answer to Third-Party Claim

Amended Answer to Third-Party Claim

Notice of Impleader and Exhibits Annexed (filed November 12, 2004) and Third-Party Claim

Third-Party Claimant's Supplemental Affidavit dated November 18, 2004 and Exhibits Annexed

Once again I am asked to review and understand the meaning of Court of Claims Act §9(9-a), what for me seems like the quintessential vestigial statute.

A brief synopsis of proceedings in this matter will prove helpful. Claimant Robert H. Auger[1] was injured on April 16, 1996, when he fell approximately four feet to the ground from the conveyor track located on a trenching machine (owned by All-States Sawing and Trenching, Inc. [All-States]) which he was repairing. Claimant was employed as a certified welder by Sealand Contractors Corporation (Sealand), the general contractor on a road reconstruction project for the State of New York. In a decision and order dated November 20, 2002, Claimant's cause of action relying upon Labor Law §240(1) was dismissed, a decision which was affirmed by the Appellate Division, Fourth Department, on April 30, 2004 (6 AD3d 1099). The State of New York thereafter filed a motion for summary judgment, upon which decision is reserved, and trial was scheduled to commence on September 20, 2004. On the eve of trial, however, Defendant State of New York advised the Court that it believed that certain liability and umbrella insurance policies existed which might require other entities to defend and indemnify the State of New York in this litigation. The trial was stayed on consent of all parties and an order to show cause seeking declaratory relief (Court of Claims Act §9[9-a]) was filed. That motion, currently before me, seeks to have All-States and/or St. Paul Travelers Company, Inc.[2] defend and/or indemnify the State of New York in this litigation.

Trial was adjourned to January 18, 2005 and final argument on the motion seeking declaratory relief was heard on November 19, 2004. Counsel for the Third-Party Claimant (and Defendant in the main action) and for the Third-Party Defendants were heard on this narrow area of law. This decision memorializes the previously communicated denial of the relief sought, provided verbally to the parties.

Section 9(9-a) gives the Court of Claims jurisdiction:

To make a declaratory judgment as defined in section three thousand one of the civil practice law and rules with respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in any action pending in the court of claims, provided that the court shall have no jurisdiction to enter a judgment against an insurer pursuant to this subdivision either: (i) for money damages; or, (ii) if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought.

And the manner of proceeding is governed by Court of Claims Uniform Rule 22 NYCRR 206.6:

(g) Declaratory judgment. Actions for declaratory judgment, pursuant to section 9(9-a) of the Court of Claims Act, shall be commenced by the filing with the clerk and service upon the third-party defendant of a notice of impleader, together with a third-party claim, in the nature of a complaint, and all prior pleadings in the action. Such papers also shall be served upon all other parties. Service upon the third-party defendant shall be made in the same manner as service of a claim under section 11 of the Court of Claims Act. The original third-party claim and two copies thereof shall be filed with the clerk within 10 days of such service. Responsive pleadings shall be served and filed in accordance with rule 206.7.

There are no procedural infirmities alleged with respect to the manner in which the State has sought the declaratory judgment. The dispute is substantive and jurisdictional. First, All-States argues that Section 9(9-a) applies only to insurers, and thus the Court has no jurisdiction to grant a declaratory judgment against a third party which is not an insurance company. I have had occasion to review this very question, somewhat contemporaneously with the instant proceedings, in Scott v State of New York and State of New York v Rochester Gas and Electric Corp. (Ct Cl, UID #2004-013-064 [Claim No. 107168 - Motion No. M-68376] Dec. 30, 2004),[3] a copy of which is attached hereto. It is clear to me from reading the statute and its legislative history, and following the analysis in Sangirardi v State of New York (152 Misc 2d 423) that the only entities contemplated in Section 9(9-a) are insurers, and not any other entities. Thus, as to Third-Party Defendant All States Sawing and Trenching, Inc., there is no jurisdiction to grant a declaratory judgment against an entity which is not an insurer, and the motion is denied as to it.

What remains is the relief sought against St. Paul Travelers Company, Inc. (Travelers [the successor to Aetna Casualty Insurance Company]), vigorously opposed on several grounds, including late notice, to wit, that this accident took place over eight years ago, and apparently the first notification to Travelers that the State of New York (which appears by counsel for Zurich North America, the carrier for Sealand, the general contractor) was seeking to have it defend and indemnify the State in this matter was by letter dated August 16, 2004 (see Exhibit I to the motion papers), at a time when the trial was scheduled to commence in September and then October 2004. Not surprisingly, Travelers disclaimed coverage on several bases in its letter of September 10, 2004 (Exhibit I), including the specific exclusion of coverage for bodily injury to an employee of the insured, i.e., Claimant. The State thereupon filed the instant motion, albeit by order to show cause, because of the proximity of the impending trial.

Travelers posits, with considerable logic, that the proceeding in front of me is one insurance company against another, seeking the interpretation of contracts of insurance between two parties, neither of which is the State of New York. In this scenario, I am asked to interpret two contracts of insurance issued by Travelers between a contractor (Sealand) and a subcontractor (All-States), neither of which names the State of New York as an additional insured.

It is not necessary for me to examine all the grounds upon which Travelers relies in resisting the declaratory relief, because I am able to focus on the reservation of the statute depriving me of the relief sought, "(ii) if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought." It is this protection for insurers that denudes this statute of any effectiveness except in the most mundane and straightforward demurrals by an insurer who is trying to avoid the defense and indemnification of the State, based on untimely or faulty notice, etc. It is difficult to fathom that the legislature in enacting Section 9(9-a), toothless as it is, contemplated much more than the enforcement of a contractual obligation to defend and indemnify where the State of New York itself is the moving party and an insurance company for a contractor demurs from its purported obligation.

Applying Section 9(9-a) to contested scenarios is like eating cotton candy, one has nothing to sink one's teeth into. And that is the essence of my ruling today. Travelers has set forth several questions of fact, which, while I am capable of deciding as I do in all Court of Claims proceedings where I act as judge and jury, it is entitled to have a jury determine, a right for which the Legislature deprived the Court of Claims of jurisdiction. Travelers posits the question whether, since Claimant Auger was employed by Sealand, his injury arose out of All-States work, to wit, whether the direction to repair the trenching machine came from Sealand, the State of New York, or All-States, and thus that it is not a matter of law, but a question of fact to which it is entitled to a jury's determination (see AIU Ins. Co. v American Motorists Ins. Co., 8 AD3d 83). I take no umbrage from Travelers' preference.

Once again, having articulated this material question of fact, it is not necessary for me to elucidate on other questions of fact to which Travelers raises its entitlement to a jury. This question alone eviscerates the narrow empowerment statutorized in Section 9(9-a).

The recent decision in Northland Assoc. v Joseph Baldwin Constr. Co. (6 AD3d 1214) provides the Fourth Department's view of a reasonably comparable scenario involving the State of New York and a general contractor who also had a subcontractor, and an employee of the subcontractor sued the State of New York in the Court of Claims. When the subcontractor refused to defend and indemnify the State of New York in the Court of Claims action, the general contractor brought an action in Supreme Court against the subcontractor for contractual indemnification. The Fourth Department concluded that the subcontractor's obligation to defend and indemnify the State and general contractor would be triggered only upon a determination that the subcontractor was negligent, a finding which could not be made in the Court of Claims, inasmuch as the subcontractor was not a party to that action.

The parallel inference one draws from that analysis is that the contract between Sealand and All-States is not before me, and that it must be interpreted in a court in which both of those parties may appear. Furthermore, as the court held in Northland, supra, only if a judgment is obtained against the subcontractor and it remains unsatisfied for more that 30 days may the general contractor recover against the subcontractor's insurer. Here, of course, I only have the subcontractor's insurer Travelers in front of me, and not the subcontractor itself, seemingly putting the cart before the horse, given the Fourth Department's reasoning in Northland, supra.

And indeed, as Judge Henry Lengyel (Gordon v State of New York, 146 Misc 2d 479, 481) has noted, and as Counsel to the Unified Court System presciently suggested when writing to the Governor's counsel regarding Section 9(9-a), "the exception made with respect to actions where the insurer has a right to a jury trial, as provided for in the bill, makes it doubtful as to how effective this provision actually will prove to be in achieving its purpose."

And, sitting as I do at the very bench from which Judge Lengyel presided during his tenure on this Court, I could not agree more. I would urge the Legislature to revisit this statute, and either make it more functional, or rescind it.

In any event, the motion is denied in its entirety.

January 19, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Sandra L. Auger being derivative, unless otherwise specified, all reference to Claimant shall mean Robert H. Auger.
  2. [2]The motion caption is amended sua sponte to reflect the proper name of that third-party defendant.
  3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at