New York State Court of Claims

New York State Court of Claims

SILVERS v. STATE OF NEW YORK, #2008-030-565, Claim No. 110663, Motion Nos. M-75491, CM-75571


Cross-motion by claimant for a stay granted pursuant to Civil Practice Law and Rules § 2201, upon showing of good cause, until resolution of the cross-appeals filed with regard to the prior decision denying cross-motions for summary judgment. Claim is one for contribution, based upon alleged negligent misrepresentation by agent of State Insurance Fund.

Case Information

LON SILVERS, as Administrator of the Estate of RALPH SILVERS
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:
October 9, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the parties’ cross-motions:

1,2 Notice of Motion for a Protective Order; Affidavit in Support of Motion for a Protective Order by Joan Matalavage, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion for Preclusion, to Strike Note of Issue and for Stay on Appeal; Affirmation of Kenneth Cooperstein, Attorney for Claimant and attached exhibits

  1. Affidavit in Opposition to Cross-Motion by Joan Matalavage, Assistant Attorney General and attached exhibits
  1. Reply Affirmation of Kenneth Cooperstein, Attorney for Claimant
7-14 Filed Papers: Claim, Answer, Silvers v State of New York, UID # 2007-030-521, Claim No. 110663, Motion Nos. M-72443, CM-72448 (Scuccimarra, J., March 26, 2007); Note of Issue; Order of Substitution; Note of Issue (supplemental); Notice of Appeal; Notice of Cross-Appeal

Claimant[2] is a New York State licensed insurance agency and brokerage, that obtained workers’ compensation insurance through the Defendant’s agent - the State Insurance Fund (hereafter SIF) - for one of its clients, Electronic Services International (hereafter ESI). ESI is in the business of installing alarm systems nationwide, and used so-called roving installers operating out of vans to do the installations at various customer sites. In its claim, the claimant alleges that SIF, through its employee Alvin Cooley, negligently misrepresented that the policy with SIF covered these roving installers, and seeks contribution.

By way of background, and in accordance with exhibits attached to the cross-motions for summary judgment decided previously, ESI commenced an action in Queens County Supreme Court against claimant on or about March 5, 1991, seeking recovery for its potential expenses in settling a claim by an out-of-state employee in the amount of $96, 821.91, and alleging claimant’s negligence in or about 1988 in obtaining the policy with SIF. Issue was joined on or about June 23, 1993.

In its answer therein, claimant asserted waiver and unjust enrichment, and also attempted to implead SIF in a third party action. The third party action against SIF was dismissed on April 26, 1995 based upon this Court’s exclusive subject matter jurisdiction over claims against the State of New York and its agents. The Queens County trial court dismissed the lawsuit by ESI against this claimant on or about March 2, 2000.

On June 11, 2001, the Second Department reversed the trial court’s dismissal, awarded damages to ESI, and found that ESI had proven that this claimant negligently failed to obtain workers’ compensation coverage for ESI’s out-of-state employees from 1985 to 1989. Ultimately, the Court of Appeals denied leave to appeal lower court rulings on February 25, 2003, rendering ESI’s judgment against claimant final.

A notice of intention to file a claim was served upon the Attorney General on or about May 23, 2003. Claimant made payment into court on April 17, 2003 of moneys to stay enforcement of the judgment against it. In the interim, ESI was involved in bankruptcy proceedings, necessitating the involvement of the United States Bankruptcy Court, Eastern District of New York, in any resolution of the lawsuit. ESI’s trustee in bankruptcy and claimant entered into a settlement agreement on October 15, 2003 providing for payment of $175,000.00 in full satisfaction. Payment of this sum was delivered by claimant’s attorney on January 30, 2004.

On March 22, 2005 the verified claim filed in this court was served upon the Attorney General’s office. In it claimant seeks recovery of its out-of-pocket expenses incurred in litigating and settling the Queens County Supreme Court action, including the $175,000.00 payment to ESI and $115,000.00 attorney’s fees. In addition to general denials, the State’s answer asserts seven defenses, including a lack of personal and subject matter jurisdiction due to service of the claim more than ninety (90) days after its accrual, the culpable conduct of claimant and others for whom the state would not be responsible, failure to state a cause of action, absolute or qualified immunity, statute of limitations, and statute of frauds.

Cross-motions for summary judgment were denied in a decision and order filed May 2, 2007, because the court found, among other things, that triable issues of fact prevented summary disposition of the matter. Claimant filed a notice of appeal with regard to this decision and order on September 24, 2008, and a notice of cross-appeal was filed on or about October 3, 2008.
This cross-motion is addressed first because it disposes of the pending matters. Civil Practice Law and Rules § 2201, applicable in the Court of Claims pursuant to Court of Claims Act § 9(9), provides that “. . . [e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.”[3] The party seeking the stay must show “good cause.”

After reviewing the claimant’s cross-motion, affirmation, and attached exhibits the court is satisfied that there is good cause to stay all proceedings in this claim, until resolution of the cross-appeals filed[4] with regard to the court’s prior decision denying the parties’ cross-motions for summary judgment.

Accordingly, claimant’s cross-motion for a stay of all proceedings pending resolution of such appeal is hereby GRANTED, and defendant’s motion as well as other aspects of claimant’s cross-motion are hereby DENIED without prejudice.

October 9, 2008
White Plains, New York

Judge of the Court of Claims

[1]. This recitation is taken from this Court’s earlier decision denying the parties’ cross-motions for summary judgment, which was filed on May 2, 2007. See Silvers v State of New York, UID # 2007-030-521, Claim No. 110663, Motion Nos. M-72443, CM-72448 (Scuccimarra, J., March 26, 2007). In this regard the Court agrees that it is somewhat disingenuous to be as reluctant as defendant has been to the claimant’s requests to admit to the genuineness of court documents from courts of record - namely the Queens County Supreme Court and the Appellate Division - such documents having been previously utilized in previous motion practice in this Court, and offered here in an apparent effort to streamline the issues presented at any trial in this court. Given the resolution of the present cross-motion, however, the Court does not reach the issue.
[2].“Claimant” refers to the decedent’s agency.
[3].Since automatic and discretionary stay provisions under Civil Practice Law and Rules §5519 are meaningful in the enforcement context, the broader Civil Practice Law and Rules §2201 is the applicable provision.
[4]. As to any issue concerning to which department of the Appellate Division an appeal lies, if this continues to be an issue it should be raised in the appellate divisions, not here in the trial court. Notably, the claim accrued in New York County, and has been assigned to the New York District of the Court of Claims as determined by the Clerk’s Office on April 7, 2005.