New York State Court of Claims

New York State Court of Claims

DORMITORY AUTHORITY v. THE CITY UNIVERSITY OF NEW YORK, #2008-036-324, Claim No. 106693, Motion Nos. M-74460, CM-74809


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:
By: Ellen S. Mendelson, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 22, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Dormitory Authority of the State of New York (“DASNY”) and Travelers Indemnity Company (“Travelers”) bring this motion for leave to reargue and/or renew their motion for summary judgment against defendant, the City University of New York (“CUNY”) for contractual indemnification and reimbursement on the basis that (a) the court overlooked certain facts in its decision dated November 13, 2007 dismissing claimants’ claim as premature, and (b) evidence not previously deemed necessary to substantiate such facts is now proffered to further persuade the court to reconsider its earlier decision. Defendant opposes the motion and cross moves for leave to reargue and renew its opposition contending the claim should be dismissed under the anti-subrogation rule and also because it is barred by collateral estoppel and the statute of limitations.[1] The court concludes that claimants have highlighted verified allegations of fact in the claim itself which contradict the court’s inference in its November 13, 2007 decision, and have presented evidence on this motion to further substantiate those allegations which warrant the court’s reconsideration of its decision. Defendant has not presented any fact or legal argument not previously considered by the court in rendering its earlier decision which would entitle it to reargue or renew its opposition and thus the court denies defendant’s cross-motion.

In the court’s earlier decision, it ruled defendant was not entitled to protection under the anti-subrogation rule regarding DASNY’s and Travelers’ claim for indemnification and reimbursement arising from an action brought against CUNY by Jose Oliveira and his wife (the “Oliveira Action”) for damages sustained while Mr. Oliveira had performed cleaning and maintenance services as an employee of Triangle Services, Inc. The court found DASNY and Travelers are not barred from seeking indemnification and reimbursement from CUNY by the anti-subrogation rule because CUNY was not a Travelers’ insured for these cleaning and maintenance purposes but was only an additional insured for services performed in the course of “construction work” under CUNY’s lease arrangement with DASNY. The court also ruled that the Supreme Court’s decision in the case brought by DASNY and Travelers against CUNY’s insurer, National Union Fire Insurance Company of Pittsburgh, PA, does not collaterally estop claimants here from pursuing their claim for indemnification and reimbursement against CUNY because CUNY was not a party to the Supreme Court action. The court further ruled that claimants are not barred by the statute of limitations because their claim was for breach of contract, which has a six-year statute of limitations running from the payment date of the accident award in the Oliveira Action. However, in searching the record the court, sua sponte, concluded the claim was premature. The court stated:
The court cannot find this claim to be timely. Claimants never offer a date of payment or even suggest that payment occurred before the claim was filed. At best, they state the payment came “some time after the jury verdict.” Given the import of the declaratory judgment decision of April 29, 2003 which found National Union and Travelers to be co-insurers, it is reasonable to infer that Travelers waited for this judicial decision before making payment no less than seven months after the claim was filed. Conversely, the claim for contractual indemnification and reimbursement did not accrue until at least seven months after the claim was filed, making this claim when filed premature and requiring its dismissal.

On this motion, claimants point to certain of their verified allegations in the claim dated September 5, 2002 (attached as an exhibit to claimants’ original motion for summary judgment) and now attach to their motion papers documentary and other evidence to support these allegations which they contend prove their claim was not premature. Specifically, claimants cite paragraphs 44 and 45 of their verified claim, which allege that “to date” claimants “have paid all attorneys fees, costs, disbursements and other expenses incurred by DASNY” in defending the Oliveira Action, and have paid “the amount of the judgment resulting from the May 10, 2002 jury verdict of $733,041.53” in the Oliveira Action, plus interest at 9% per annum. In the verified answer to the claim, defendant had only denied knowledge or information sufficient to form a belief as to these allegations. The evidence now submitted by claimants demonstrate that on August 22, 2002, before the claim here was filed, Travelers paid the underlying verdict and costs. See Exs. D, E, M and N to Affirmation in Support of Motion for Leave to Reargue and Renew Claimants’ Motion for Summary Judgment. Defendant proffered no evidence to dispute paragraphs 44 and 45 of the verified claim, either then or now, nor to refute the evidence claimants submit on this motion.

CPLR § 2221 (d) permits a party to move for leave to reargue “upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion”; and CPLR § 2221(e) permits a party to move for leave to renew “upon new facts not offered on the prior motion that would change the prior determination.” The court’s original conclusion that it was reasonable to infer Travelers “waited for this judicial decision before making payment” had not taken into account paragraphs 44 and 45 of the verified claim. On the original motion for summary judgment defendant did not argue the claim was premature, and thus there was no need for claimants to submit evidence of payment as they now have done on this motion. See CPLR § 2221 (e) (3).

Claimants motion for leave to reargue and renew their summary judgment motion is granted. There is sufficient proof that this claim was not filed prematurely and thus claimants are granted summary judgment on the issue of liability.

Within thirty (30) days of the filing of this decision the parties are directed to submit to Chambers their respective proposals for the award of damages, including the dates from which interest is alleged to run and the computations of such interest. The court then will schedule a conference with the parties to determine whether an agreement as to damages is feasible or, if not, to schedule a hearing or trial, if necessary, to resolve the matter of damages.

July 22, 2008
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motion and cross-motion: claimants’ motion to reargue and/or renew filed January 23, 2008, together with supporting affirmation and exhibits; defendant’s affirmation in opposition and in support of its cross-motion to reargue and/or renew dated April 9, 2008; claimants’ affirmation in opposition to defendant’s cross-motion filed May 28, 2008; and defendant’s reply affirmation filed June 20, 2008.