New York State Court of Claims

New York State Court of Claims

MALLER v. THE STATE OF NEW YORK, #2006-036-503, Claim Nos. 110215, 110396, Motion No. M-70724


Claim for indemnity accrues upon payment of damages in underlying action.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110215, 110396
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Brand, Glick & Brand, Esqs.By: Edward J. Savidge, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Victor D’Angelo, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


These two claims, which are identical except for the titles [1], allege that claimants Paul and Karen Maller are defendants in a Supreme Court action arising out of a July 12, 2003 automobile accident on the Robert Moses Causeway, a State highway. The claims further allege that the State of New York was responsible in whole or in part for the accident, based on the allegation that the State Police were negligent in controlling traffic flow, and the claims demand judgment against defendant for the amounts that claimants will be required to pay in the Supreme Court action.[2]

Defendant argues the claims must be dismissed as premature, since no judgment has been entered, much less paid, in the underlying action. As defendant notes, the decision in Bay Ridge Air Rights v State of New York (44 NY2d 49 [1978]) is dispositive of this claim. The Court therein noted that “a cause of action for indemnity accrues on the date payment is made by the party seeking indemnity” and “there is nothing in either Dole v Dow Chem. Co. (30 NY2d 143 . . .) or CPLR article 14 on contribution that justifies in this respect distinguishing claims for apportionment from those for indemnity” (id., 54-55, citing Berlin & Jones v State of New York. [85 Misc 2d 970 (1976)], which examined the various alternative accrual dates in such situations – the date of the underlying accident, the date of entry of judgment in the underlying action or the date of payment by one tortfeasor of more than his or her equitable share – and concluded that the latter date constituted the accrual date of a claim for contribution).

Whether the claims herein sound in contribution or indemnification is irrelevant because the accrual date for either claim would be the same; i.e., the date of payment of the underlying judgment. Here, the Supreme Court action that forms the basis of the claim for contribution and/or indemnification has not yet been tried. It may well be that claimants will not be found to have any liability for the accident, thus mooting any need to pursue a claim for contribution or indemnification against the State. Claimants point out that requiring payment as a condition for accrual of the claim could lead to claims being filed years after the underlying events and contend that “this Court should encourage the swift commencement of actions against the State to permit the State to investigate claims against it,” (Affirmation in Opposition, ¶ 12). As the Court noted in Bay Ridge Air Rights, supra, it is within a court’s purview to establish such a requirement: “It is the Legislature, and the matter is urgent, that could best explore the possible alternatives, such as establishing an earlier accrual date, at least for notice of claim purposes, or perhaps, much better yet, allowing the State to be impleaded as a third party in the main action when the action is brought in the State courts” (id., 56).

Claimants request the court to provide, in any order of dismissal, that claimants be given leave to “renew” their claim upon payment of a judgment. Such is unnecessary since there is nothing to “renew.” In the event a judgment is entered against the claimants and they make a payment on such judgment, their claim against the State then will accrue and they may commence an action at that point pursuant to the applicable law, not pursuant to any direction of this court.

For the foregoing reasons, the motion is granted and the clerk of the court is directed to close the files in Claim Nos. 110215 and 110396.

January 24, 2006
New York, New York

Judge of the Court of Claims

The court read and considered the following papers on this motion:
  1. Notice of Motion, Affirmation and Exhibits.
  2. Affirmation in Opposition and Exhibits.
  3. Reply Affirmation.
  4. Claim No. 110215
  5. Claim No. 110396

[1].Claim No. 110215, filed December 14, 2004, is called “Notice of Claim.” Claim No. 110396, filed January 24, 2005, is called “Claim/Complaint.” Since the documents are otherwise identical, it appears counsel may not be familiar with the filing requirements in the Court of Claims, not that there was an intent to commence two separate actions. Defendant’s motion was addressed simply at “the claim.”
[2].Although the claim refers in parts to Supreme Court “actions,” it appears that there is only one action.