New York State Court of Claims

New York State Court of Claims

TRI-W v. THE STATE OF NEW YORK, #2009-033-598, Claim No. 112953


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):

James J. Lack
Claimant’s attorney:
Adam B. Grossman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Tri-W Construction, LLC (hereinafter “claimant”) for damages due to the alleged wrongful cancellation of an insurance policy by defendant. The alleged wrongful termination occurred on June 5, 2003. On October 28 and 29, 2008, a bifurcated trial was held as to the question of liability.

Claimant called three witnesses in support of its case: James Wright, David Wright and Salvatore Surace. Defendant called six witnesses to testify on behalf of the State of New York. The testimony of the witnesses substantiated claimant was a roofing contractor and had a workers’ compensation insurance policy through the State Insurance Fund. A payment was made by check. According to James Wright, Check No. 6375 was declined on April 23, 2003 for insufficient funds. On May 16, 2003, the State Insurance Fund demanded payment in the sum of $125,779.81 or claimant’s policy would be cancelled June 5, 2003. Claimant disputed this amount and attempted to negotiate with defendant.[1] No payments were made to defendant and claimant’s workers’ compensation policy was cancelled on June 5, 2003.

The foregoing facts are not in dispute.

Jeffrey Epstein testified for defendant. The witness is a senior collection manager for the State Insurance Fund. He testified claimant’s declined check is the reason for claimant’s insurance policy to be placed in cancellation. However, he further testified, a party has 20 days to reinstate a policy. In this matter, claimant would have to make a minimum payment of $65,604.33 (defendant’s Exhibit J).

According to claimant, an offer of $25,000.00 was made to defendant to prevent cancellation and it was rejected (claimant’s Exhibit 8). Thereafter, claimant’s policy was cancelled.

At trial, defendant moved to dismiss the claim alleging this Court lacked subject matter jurisdiction over the claim. It is defendant’s position that claimant is seeking a ruling from this Court that the premiums were miscalculated and claimant’s policy was wrongfully terminated. Thus, defendant argues, claimant is challenging a determination of the State Insurance Fund which is not properly brought here and should have been the subject of a CPLR Article 78 proceeding in Supreme Court.

This Court disagrees with defendant’s analysis. The claim supposes the termination is wrongful and seeks monetary relief for lost business and expenses. Claimant is suing defendant for money damages, which is properly brought in the Court of Claims. Defendant’s motion to dismiss for lack of subject matter jurisdiction is denied.

The Workers’ Compensation Law was enacted in 1913 to ensure timely disability and medical payments to injured workers at a reasonable cost to employers (Workers’ Compensation Law §76 legislative intent note). Workers’ Compensation Law §92 requires the premium to be paid in the beginning of each period to be covered or for the premium to be paid in installments in accordance with rules set by the fund’s commissioners. Adjustments for overpayment or underpayment are made at the end of each period covered (Workers’ Compensation Law §92(3)). In the event there is a default by the employer, defendant is entitled to cancel the policy (Workers’ Compensation Law §93; Matter of De Stefano v State Ins. Fund, 43 AD2d 180).

In the instant matter, defendant offered installment payments to claimant. Claimant offered a different payment than requested. Claimant’s offer was refused. This refusal did not relieve claimant of its obligation to make the premium payment. Any dispute as to the amount of the payment would have been settled with the audit at the end of the insurance period.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

September 21, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].Defendant admits this amount was incorrect and it was adjusted in 2005 prior to claimant being issued a new workers’ compensation policy.