New York State Court of Claims

New York State Court of Claims

NEELY v. THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TRANSPORTATION and NEW YORK STATE THRUWAY AUTHORITY, #2006-016-028, Claim No. 110262, Motion No. M-70981


Synopsis



Case Information

UID:
2006-016-028
Claimant(s):
CLARENCE NEELY and CLARA NEELY
Claimant short name:
NEELY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TRANSPORTATION and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):
THE STATE OF NEW YORK
Third-party defendant(s):
NEW HAMPSHIRE INSURANCE, ALLIED NA INSURANCE BROKERAGE CORP OF NEW YORK, STATE INSURANCE FUND, CONTINENTAL CASUALTY, UNITED STATES FIRE INSURANCE COMPANY and COLUMBUS CONSTRUCTION CORPORATION
Claim number(s):
110262
Motion number(s):
M-70981
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:

Defendant’s attorney:
Eliot Spitzer, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:
Fabiani Cohen & Hall, LLPBy: Melissa R. Callender-Lee, Esq.
Signature date:
April 26, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Third-party defendant Columbus Construction Corporation (“Columbus”) moves for an order pursuant to CPLR 3211 dismissing the third-party claim against it. In the underlying claim, it is alleged that Clarence Neely’s motor vehicle was struck by another vehicle because of an accumulation of water on the New York State Thruway, near its intersection with the Bruckner Expressway. In the third-party claim, it is alleged that Columbus was performing work in the vicinity of the accident pursuant to a contract with the New York State Department of Transportation. The State further alleges that such contract required Columbus to procure insurance coverage for “The People of the State of New York, the Commissioner of Transportation and their employees, among others.” See ¶24 of the Notice of Impleader annexed to Columbus’ moving papers as exhibit A. Section 9.9-a of the Court of Claims Act (the “Act”) provides in relevant part that the Court of Claims has jurisdiction to make a declaratory judgment “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 . . .” The State argues that Columbus “has not shown that it is not self-insured, holding a self-retention policy [of] insurance or not otherwise obligated to stand in the shoes of an insurer . . .” See ¶13 of the February 7, 2006 affirmation of Gwendolyn Hatcher.

The issue here is thus whether, in view of its obligation to procure insurance coverage, Columbus can be considered an insurer within the meaning of §9.9-a of the Act. Such issue was addressed in Sangirardi v State of New York, 152 Misc 2d 423, 428, 577 NYS2d 751, 755 (Ct Cl 1991), in which it was held that “a contractor with a tort or contractual obligation to indemnify a defendant in this court is not an insurer within the meaning of section 9(9-a). . . .” See also Scott v State of New York, Ct Cl, December 30, 2004 (unreported, claim no. 107168, motion no. M-68376, Patti, J., UID #2004-013-064[1]).

In view of the foregoing, having reviewed the parties’ submissions[2], IT IS ORDERED that motion no. M-70981 be granted and the third-party claim against Columbus Construction Corporation be dismissed.


April 26, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]This and other decisions of the Court of Claims may be found on the Court’s website: www.nyscourtofclaims.state.ny.us.
  2. [2]The Court reviewed: Columbus Construction Corporation’s notice of motion with affirmation in support and exhibit A; the State’s affirmation in opposition with exhibits 1 and 2; and Columbus Construction Corporation’s reply affirmation.