Berlin & Jones, Inc. v. State

• Decision Date: 22 March 1976
• Docket Number: Nos. 57264,57769,s. 57264
• Citation: 381 N.Y.S.2d 778,85 Misc.2d 970
• Court: New York Court of Claims
• Parties: BERLIN & JONES, INC., Claimant, v. The STATE of New York, Defendant. Jerome H. LYONS and the Travelers Indemnity Co., Claimants, v. The STATE of New York, Defendant. Claim

Page 778

381 N.Y.S.2d 778

85 Misc.2d 970

BERLIN & JONES, INC., Claimant, v. The STATE of New York, Defendant.

Jerome H. LYONS and the Travelers Indemnity Co., Claimants, v. The STATE of New York, Defendant.

Claim Nos. 57264, 57769.

Court of Claims of New York.

March 22, 1976.

O'Leary & O'Leary, Jamaica, for Berlin & Jones, Inc. by Robert Devine, Jamaica, of counsel.

Frank B. Gass, New York City, for Jerome H. Lyons and Travelers Indem. Co.

Louis J. Lefkowitz, Atty. Gen., for the State by William T. McCue, Asst. Atty. Gen., of counsel.

DECISION

HENRY W. LENGYEL, Judge.

These claims for indemnification and reimbursement were joined for trial purposes by order of Judge Sidney Squire dated April 4, 1975. I shall render one decision upon which separate judgments may be entered.

The second paragraph of Claim No. 57264 stated:

'This claim is for indemnification and reimbursement for a Judgment rendered against Berlin & Jones, Inc. in the sum of * * * $480,000.00 * * * which was reduced to the sum of * * * $380,000.00 * * * by the Court. A copy of said Judgment entered in the Supreme Court, New York on October 31, 1972 is attached hereto * * *.'

It should be noted that in the Supreme Court action the corporate defendant was entitled Burlin & Jones, Inc., whereas in this action as claimant it was entitled Berlin & Jones, Inc. It appealed the Supreme Court judgment which was affirmed by a divided court in Lyons v. Burlin & Jones, Inc., 43 A.D.2d 528, 349 N.Y.S.2d 1 (1st Dept., 1973). The appellate determination was affirmed without opinion by the Court of Appeals (34 N.Y.2d 896, 359 N.Y.S.2d 284, 316 N.E.2d 718 (1974)). The judgment of October 31, 1972 was paid in full on or about August 6, 1974. (Exhibit '18')

The second paragraph of Claim No. 57769 stated:

'This claim is for indemnification and reimbursement in the amount of * * * $106,200.00 * * *; said sum having been paid by claimants in settlement of an action entitled 'Berger et al vs. Burlin & Jones, Inc. et al' in the Supreme Court, New York County. The aforementioned settlement was effected on October 24, 1972 and payment of same was made on or about November 17, 1972.'

The Supreme Court actions arose out of a three car collision which occurred on February 18, 1969. The most seriously injured party was Frank A. Lyons, the driver of a westbound vehicle. The principal defendants were Jerome H. Lyons (no relation), the driver of an eastbound vehicle, and his employer, Berlin & Jones, Inc. The trial of these multiple personal injury and property damage cases occupied eleven trial days between October 10th and 25th, 1972.

The Berlin claim (Claim No. 57264) was filed with the Clerk of the Court of Claims and served upon the Attorney General on January 15, 1973.

A Notice of Intention to File a Claim was filed with the Clerk of the Court of Claims on January 12, 1973, and served upon the Attorney General on January 15, 1973. The claim, was related to said notice of intention, was filed with the Clerk of the Court of Claims on August 20, 1973 and was served upon the Attorney General on August 17, 1973. That claim was designated Claim No. 57769.

At the close of the trial in the Court of Claims, the Assistant Attorney General moved, among other grounds, to dismiss both of these claims as being jurisdictionally defective because of untimely filing. I reserved decision.

As the accident which generated all of this litigation occurred prior to March 22, 1972, the effective date of Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, the State contended that claimants were required to file and serve a notice of intention or claim on or before September 22, 1972; or, within six months of the Dole effective date. Basically, it was the State's position that the contribution claim which stems from a core action accrues on the day of injury.

The Assistant Attorney General conceded for purposes of argument in these claims that Court of Claims Act § 10(4) was the controlling jurisdictional time limitation statute. His concession was in accord with several Court of Claims decisions on this point. See, O'Sullivan v. State of New York, 83 Misc.2d 426, 371 N.Y.S.2d 766; Leibowitz v. State of New York, 82 Misc.2d 424, 371 N.Y.S.2d 110; Bay Ridge Air Rights, Inc. v. State of New York, Claim No. 59365, Ct.Cl., 84 Mis.2d 801, 376 N.Y.S.2d 895, filed December 18, 1975; and Relyea v. State of New York, Claim No. 57973 (Motion No. M--17728), filed January 9, 1976.

I agree on this point with my colleagues. I hold that claimants herein had six months from the date their claims accrued in which to file and serve a notice of intention or claim. Of course, if claimants followed the notice of intention route, they were required to serve and file a claim within two years after the date of accrual. (See, Court of Claims Act, §§ 10(4) and 11)

The difficult and vexatious question is, when did the contribution claims at bar accrue?

If contribution or partial indemnity claims accrue on the date of the tort from which they stem, I must dismiss these Pre-Dole claims. See, Leibowitz v. State of New York, 82 Misc.2d 424, 371 N.Y.S.2d 110, Supra.

If such claims accrue on the date of entry of judgment in the primary action, then I must deny the State's motion to dismiss. See O'Sullivan v. State of New York, 83 Misc.2d 426, 371 N.Y.S.2d 766, Supra.

There is, however, a third alternative, namely, that claims seeking contribution from a joint tortfeasor in a separate and independent action which stems from a core action, do not accrue until Payment has been made, either under settlements effected between March 22, 1972 and September 1, 1974 (See, Codling v. Paglia, 32 N.Y.2d 330, 344, 345 N.Y.S.2d 461, 471, 298 N.E.2d 622, 629; and General Obligations Law, § 15--108(c)) (Cf., Rock v. Reed-Prentice, 39 N.Y.2d 34, 382 N.Y.S.2d 720, 346 N.E.2d 520, N.Y.L.J., Vol. 175, No. 46, 3/9/76); or, under judgments entered in the primary action. I am in accord with the third alternative.

I have carefully read the thoughtful and well-reasoned decisions which held that the date of the original tort controlled the starting or trigger date for the statute of limitations in contribution on partial indemnity actions. I have not been persuaded by those decisions. I noted that, although the Federal courts apply the federal two year tort statute to contribution claims, the statute does not commence to run until the date of payment after judgment in the primary action. In United States v. Lines, Inc. v. United States, 470 F.2d 487, 489 (5 Cir.), it was written:

'Provided there exists a right to contribution or indemnity, the applicable two-year statute of limitations (28 U.S.C.A. § 2401(b)) does not run from the date of injury but from the time the right to contribution or indemnity accrued, namely, date of payment * * *. See 54 C.J.S. Limitations of Actions § 160; Kantlehner v. United States, D.C., 279 F.Supp. 122; Keleket X-Ray Corporation v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167; States Steamship Company v. American Smelting & Refining Company, 339 F.2d 66 (9 Cir.).'

To hold otherwise could deprive many claimants of an opportunity to seek contribution from the State. Admittedly, under Atlantic Mutual Ins. Co. v. State of New York, 50 A.D.2d 356, 357, 358, 378 N.Y.S.2d 95, 96, 97 (3d Dept., 1976) it was held that a claimant '* * * may prospectively file an effective notice of intention to file a claim under the provisions of section 10 of the Court of Claims Act and thereby preserve its status as a claimant in an action against the State in the event a Workmen's Compensation recipient fails to timely commence such an action. * * *'; and, that '* * * a prospective claimant may file to preserve its rights before it becomes endowed with the official status of a claimant.' See also, Matter of Johnson v. State of New York, 49 A.D.2d 136, 138, 139, 373 N.Y.S.2d 671, 673, 674; and, City of New York v. State of New York, 49 A.D.2d 661, 663, 371 N.Y.S.2d 922, 925. However, I cannot believe the appellate courts would apply the prospective filing rule to preserve an application of the day of injury theory in contribution or partial indemnity claims. Such an application could give rise to illogical and unreasonable results. Assume that 'A' and the State were joint tortfeasors in a motor vehicle collision and 'B' was the injured party. 'B' of course has, under normal circumstances, 90 days in which to sue the State (Court of Claims Act § 10(3)) and three years in which to sue 'A'. (CPLR § 214). Let us further assume that 'B' neglects to sue the State within 90 days and that his claim is time barred. Under the date of injury theory propounded by the State in the claims at bar, 'A' might be forced to sue the State for contribution before he was sued by 'B' in the Supreme Court, an anomalous situation; 'A' might be forced to make admissions (the suit itself might be considered an admission) in his prospective suit against the State; or, 'A' might be forced to sue the State and then wait a portion or all of the three years of the statute of limitations (CPLR § 214) plus the preparation, calendar, trial, and appeal time of the main action before his claim could be prosecuted, and the court would have to calendar 'A's' case for that period. A situation analogous to this last example was considered in States Steamship Co. v. American Smelting & Refining Co., 339 F.2d 66, 70 (9 Cir.)

'Appellant urges that a procedure could be employed that would allow a suit to be filed in such a case at the time of delivery, and then stayed until determination of the amount of the award and payment thereof. To impose such a burden upon the claimant to anticipate at the time of delivery the nature and extent of his (indemnity) claim for damages, and to impose a burden upon the courts to indulge in this staying procedure, cannot be said to have been within the reasonable contemplation of Congress.' (Matter in ...