In the Matter of State Farm Insurance Company v. Suffolk Transportation Co., 2007 NY Slip Op 31241(U) (N.Y. Sup. Ct. 3/14/2007)
| Decision Date | 14 March 2007 |
| Docket Number | Mot Seq: 002 MG,0035064/2006 |
| Parties | In the Matter of STATE FARM INSURANCE COMPANY, a/s/o, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Petitioner, v. SUFFOLK TRANSPORTATION COMPANY and COUNTY OF SUFFOLK, Respondents. |
| Court | New York Supreme Court |
GOLDBERG SEGALLA, LLP., Attorney for the Plaintiff, Mineola, New York.
CHRISTINE MALAFI, ESQ., Attorney for Defendant, Hauppauge, New York.
Upon the following papers numbered 1 to 21 read on this Proceeding: Order to Show Cause and supporting papers 1-14; Affirmation in opposition and supporting papers 15-19; Affirmation in Reply and supporting papers 20-21; it is,
ORDERED that the motion of the Petitioner, State Farm Insurance Company, a/s/o International Brotherhood of Electrical Workers, for leave to file the proposed Notice of Claim attached as Petitioner's Exhibit "A" is granted; and it is further
ORDERED that the proposed Notice of Claim attached as Petitioner's Exhibit "A" is deemed timely filed nunc pro tunc; and it is further
ORDERED that this proceeding has been marked "disposed" and any further civil action commenced by the Petitioner against the Respondents must be commenced under a new index number, the filing and service of a summons and complaint and the purchase and filing of a new RJI.
According to the Petitioner herein, on March 6, 2006, an individual operating a Suffolk Transportation Company bus drove over an object which punctured the bus' gas tank, causing transmission fluid to leak from the bus. The bus driver pulled the vehicle off the road onto premises owned by the International Brotherhood of Electric Workers (hereinafter "IBEW") and the bus apparently continued to leak fluid while on the IBEW property (see, Petitioner's Exhibit "B").
On or about March 10, 2006, a company identified as EarthCare, at the direction of the Suffolk Transportation Company, began to perform a "clean up" at the IBEW property. The transmission fluid that had leaked from the bus caused a discoloration of the ground and that fluid also had seeped into a storm drain on the property. According to the Petitioner, the soil in the storm drain was contaminated by the transmission fluid. As a result, the New York State Department of Environmental Conservation (hereinafter "DEC") was required to approve the completed clean up. The petitioner herein, State Farm Insurance Company, insured the IBEW property at the time of the spill and apparently was responsible under the IBEW insurance policy to remediate the spill.
On May 18, 2006, representatives of the Petitioner discussed the effects of the transmission fluid spill with EarthCare and EarthCare informed the Petitioner that Suffolk Transportation Company considered the remediation work at the site to be completed. However, at that time, the DEC had not approved the remediation procedures performed by EarthCare. At that point, the Petitioner paid contractors to continue to restore the premises and clean the storm drain. The additional expense of cleaning the premises incurred by the Petitioner allegedly amounted to Twenty Thousand, Two Hundred Seventeen Dollars and Ninety Cents ($20,217.90) (see Petitioner's Exhibit "D"). The work performed at the behest of the Petitioner was completed on or about September 15, 2006 and the final bill was paid by the Petitioner. Four days later, on September 19, 2006, the Petitioner sent correspondence to Suffolk Transportation Company advising that it had paid to restore the IBEW property, clean the contaminated soil and obtain the DEC approval of the clean up process(see, Petitioner's Exhibit "E").
After this invoice for payment was sent to Suffolk Transportation Company, Suffolk County sent a letter dated October 4, 2006, to the Petitioner stating:
We are in receipt of your purported claim. Inasmuch as it does not comply with Section 50(e) of the General Municipal Law of the State of New York, *** we are constrained by law to hereby reject it and advise you that we will treat it as a nullity.
So, because we were not notified within the 90-day period we must, unfortunately, deny your claim. (Petitioner's Exhibit "F").
Although it is unclear when exactly the Petitioner became aware that Suffolk County controlled or contracted with the Respondent Suffolk Transportation Company, it appears that the Petitioner obtained that knowledge sometime in the period between April and October of 2006.
After receipt of the letter of October 4, 2006, the Petitioner wrote to the County of Suffolk on October 10, 2006 and stated:
However, the Suffolk County Department of Transportation located at 10 Moffit Blvd., in Bay Shore, New York 01706 was fully apprised of what happened and had instructed companies by the name of Earthcare and 95 Inc., to commence the remediation of the site. We had only commenced our efforts after they had indicated they were completed what they had intended to do at the site.
It is unclear whether the County of Suffolk ever responded to this letter.
While the Petitioner and the County were corresponding, the DEC, by letter dated October 5, 2006, informed the owner of the IBEW property that the spill was, to the best of the DEC's then current knowledge, fully and completely remediated and the transmission fluid spill on the IBEW property was removed from the active spill list maintained by the DEC (Petitioner's Exhibit "H").
The co-Respondent herein, Suffolk Transportation Corp., the corporate entity involved in the fuel spill, is apparently a private corporation that has contracted with Suffolk County to provide bus service within this County. A computer generated statement from the New York State Department of State of the corporate status Suffolk Transportation Corp. does not reflect that it is a municipal corporation or that it has any relationship with the County of Suffolk (see, Petitioner's Exhibit "I").
According to the attorney for the Respondents, there is a contract between the County of Suffolk and Suffolk Bus Corporation wherein Suffolk Bus Corporation agrees to operate bus routes within Suffolk County, using County owned buses. The Court notes that the entity sued herein is not Suffolk Bus Corporation and is, instead, Suffolk Transportation Company. The attorney for the County has not informed the Court whether the Suffolk Bus Corporation and Suffolk Transportation Company are related entities, the same corporation using different names or separate corporations with contractual agreements with each other and/or the County, but the confusion engendered to an aggrieved claimant by these business relationships between the County and private corporations is obvious to even the casual observer. It does appear that the bus involved in the incident was owned by the County of Suffolk, but the police field report lists the complainant as "Suffolk Co. Transit". The record does not reflect that the Petitioner was aware the registered owner of the bus was actually Suffolk County.
Where a municipal entity owns the bus operated by a private corporation, the municipality "has a statutory obligation to indemnify" the non-municipal entity operating the bus (see, General Municipal Law, § 50-e (1)(b); see generally, Montalto v. Westchester Street Transp. Co., 102 A.D.2d 816, 476 N.Y.S.2d 586). Under these circumstances, where the municipality must indemnify the non-municipal entity, a timely Notice of Claim must be filed by the injured party with the municipality (see, Coleman v. Westchester Street Transp. Co., 57 N.Y.2d 734, 454 N.Y.S.2d 978, 440 N.E.2d 1324).
Although the Court agrees with the Respondents, Suffolk Transportation Company and the County of Suffolk, that the Petitioner must file a Notice of Claim as a condition of commencing a civil action, that finding does not determine whether this application for leave to file a late Notice of Claim should be granted or denied. General Municipal Law § 50-e requires that a Notice of Claim be served within ninety days after a tort claim arises against certain public and municipal corporations including the County of Suffolk. This requirement is intended to protect those public and municipal corporations against stale tort claims, and to provide them with an opportunity to timely and efficiently investigate claims (see Matter of Tumm v. Town of Eastchester, 8 A.D.3d 581, 582, 779 N.Y.S.2d 217).
General Municipal Law § 50-e(5) states in relevant part:
In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one...
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