Bay Ridge Air Rights, Inc. v. State

• Decision Date: 12 May 1977
• Docket Number: No. 59365,59365
• Citation: 57 A.D.2d 237,394 N.Y.S.2d 464
• Parties: BAY RIDGE AIR RIGHTS, INC., Appellant, v. STATE of New York, Respondent. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 464

394 N.Y.S.2d 464

57 A.D.2d 237

BAY RIDGE AIR RIGHTS, INC., Appellant, v. STATE of New York, Respondent. (Claim No. 59365.)

Supreme Court, Appellate Division, Third Department.

May 12, 1977.

Harold M. Foster, New York City (Anthony McNulty, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Douglas L. Manley and Ruth Kessler Toch, Albany, of counsel), for respondent.

Before KANE, J. P., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

OPINION FOR MODIFICATION

LARKIN, Justice.

The essential facts are not in dispute. The claimant is the owner of an apartment building in Brooklyn, New York. On July 2, 1972 a tenant in the building was murdered by a custodian in the employ of claimant. The custodian had once been a patient at the State operated Creedmoor Psychiatric Hospital and at the time of the homicide was an outpatient at Brooklyn State Hospital. The administrator of the victim's estate commenced an action in federal court against the claimant upon the theory that he had negligently hired the custodian. Claimant's third-party complaint, seeking to implead Creedmoor and Brooklyn State Hospital, was dismissed upon motion of the Attorney General.

On June 3, 1975 claimant filed a notice of intention to file a claim and a claim against the State of New York in the Court of Claims. The claim seeks "indemnification and an apportionment of damages" pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, in the event the decedent's administrator was to recover against the claimant in the Federal court suit, on the ground that the State was negligent in releasing the custodian without ensuring that he was not homicidal. The Court of Claims granted the State's cross-motion to dismiss for failure to comply with the provisions of section 10 of the Court of Claims Act. The court, essentially utilizing the reasoning contained in its earlier decision of Leibowitz v. State of New York, 82 Misc.2d 424, 371 N.Y.S.2d 110, in which it was held that a cause of action for contribution against the State accrues at the time of the tortious occurrence, dismissed the claim as untimely in that it was not filed within six months after the homicide (Court of Claims Act, § 10, subd. 4). The court also denied permission to file a late claim. This appeal ensued.

We agree with the Appellate Division of the Fourth Judicial Department that "(s)ince a claim for Dole contribution is essentially similar to one for indemnification, the accrual date principles in actions for indemnity should be applied in the instant case" (Gates-Chili Cent. School Dist. v. State of New York, 55 A.D.2d 44, 46, 389 N.Y.S.2d 716, 718. In an action for indemnity "(t)he general rule is established that the action accrues not at the time of the commission of the tort for which indemnity is sought, but at the time of the payment of the judgment" (Musco v. Conte, 22 A.D.2d 121, 125-126, 254 N.Y.S.2d 589, 595; 28 N.Y.Jur., Indemnity, § 11; 10 N.Y.Jur., Contribution, § 15; Hard v. Mingle, 206 N.Y. 179, 99 N.E. 542). We find nothing in Dole v. Dow Chem. Co. (supra ) or in CPLR article 14, which was enacted to codify and clarify the Dole rule, which changes this general principle (CPLR 1404).

While there is authority for the proposition that a claim for contribution accrues at the time of the entry of the judgment (O'Sullivan v. State of New York, 83 Misc.2d 426, 371 N.Y.S.2d 766; Marchese v. City of Albany, 81 Misc.2d 166, 364 N.Y.S.2d 140), we find no reason to depart from the well-established rule that the proper accrual date is when payment is made by the party seeking indemnification or contribution (Maryland Cas. Co. v. State of New York, 88 Misc.2d 370, 388 N.Y.S.2d 219; Berlin & Jones v. State of New York, 85 Misc.2d 970, 381 N.Y.S.2d 778; Adams v. Lindsay, 77 Misc.2d 824, 354 N.Y.S.2d 356). This view is supported by two of the leading commentators upon the CPLR (Practice Commentary by Professor Joseph M. McLaughlin, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 1402, pp. 372-373; Supplementary Practice Commentary by Professor David D. Siegel, McKinney's Cons.Laws of N.Y., Book 7B, 1976-1977 Supp.,...