New York State Court of Claims

New York State Court of Claims
MERCHANTS MUTUAL v. NEW YORK STATE INSURANCE FUND, # 2010-016-067, Claim No. 118069, Motion No. M-78700


Motion for summary judgment dismissing claim was denied. Court ordered stay pursuant to CPLR 2201.

Case information

UID: 2010-016-067
Claimant short name: MERCHANTS MUTUAL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 118069
Motion number(s): M-78700
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Hiscock & Barclay, LLP
By: Anthony J. Piazza, Esq.
Defendant's attorney: Trevett Cristo Salzer & Andolina P.C.
By: Mark M. Campanella, Esq. and Louis B. Cristo, Esq.
Third-party defendant's attorney:
Signature date: December 8, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant New York State Insurance Fund (the "Fund") moves for summary judgment dismissing the claim of Merchants Mutual Insurance Company ("Merchants") on the ground that Merchants has "an identical action pending in Erie County Supreme Court, before the Honorable Donna Siwek . . ." See 2 of the August 12, 2010 affidavit of Mark M. Campanella, Esq. (the "Campanella Aff.").

The claim arises from a lawsuit brought by the estate of Edgar Dutan, an employee of Jerrick Waterproofing, Inc. ("Jerrick"). Mr. Dutan was injured in the course of his employment with Jerrick, and subsequently died. Jerrick had three insurance policies in effect at the time of the accident: commercial liability insurance from Admiral Insurance Company; workers compensation and employers liability insurance from the Fund; and an umbrella policy from Merchants. Merchant maintains that the Fund was obliged to fully pay the claims against Jerrick, but it refused, and instead, the Dutan lawsuit was settled with payments from the Fund, Merchants and Admiral Insurance, with Merchants contributing $600,000. Merchants thus seeks damages in the amount of $600,000 from the Fund.

Merchants filed a summons and complaint against the Fund in Erie County Supreme Court on or about March 6, 2008, which contained a cause of action for a declaratory judgment, as well as one for monetary damages. Both parties in the Supreme Court action moved for summary judgment.

While the motions were pending, Merchants filed a claim in this Court on February 26, 2010, essentially seeking the same relief against the Fund as in the pending Supreme Court action. According to Merchants' counsel, the Court of Claims action was filed as a precautionary measure, citing Twin City Fire Insurance Co. v State Ins. Fund, 65 AD3d 945 (1st Dept 2009), in which the First Department wholly dismissed an action against the Fund in Supreme Court stating that, "[a]lthough denominated an action for declaratory relief, this is essentially an action to recover money damages against a state agency, the proper forum for which is the Court of Claims." 65 AD3d at 946.(1)

Subsequently, in the instant case in Supreme Court, Judge Siwek heard oral argument on the pending summary judgment motions and on May 21, 2010, issued a decision granting Merchants' motion, denying the Fund's motion, and stating that "Merchants is entitled to indemnification for its $600,000.00 payment plus interest from March 3, 2008." On July 12, 2010, Judge Siwek issued an "Order and Judgment," in which she directed that judgment be entered in favor of Merchants in the amount of $600,000 plus interest. See exhibits C and D to Merchants' opposition papers.

* * *

In view of the fact that the Fund's appeal in this case is currently pending before the Fourth Department, a stay of the Court of Claims action would be appropriate pending a determination on that appeal.

Accordingly, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-78700 be denied without prejudice. IT IS FURTHER ORDERED that claim no. 118069 be stayed pursuant to CPLR 2201, pending the Fourth Department's disposition of the Fund's appeal of Judge Siwek's decision.

December 8, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims

1. See Thomas Johnson, Inc. v State Ins. Fund, 50 AD3d 1544 (4th Dept 2008), in which the Fourth Department affirmed partial summary judgment for plaintiff in a declaratory judgment action against the Fund in Supreme Court. The Fourth Department did not directly address the issue of whether that trial court had jurisdiction to award monetary damages, although it did cite D'Angelo v State Ins. Fund, 48 AD3d 400 (2d Dept 2008), in which the Second Department had found that the Court of Claims, not Supreme Court, has such jurisdiction.

2. The following were reviewed: defendant's notice of motion with affidavit in support, exhibits A through I and memorandum of law ; claimant's affirmation in opposition with exhibits A through F and memorandum of law; and defendant's reply affidavit.