Ott v. Barash

• Decision Date: 01 July 1985
• Citation: 109 A.D.2d 254,491 N.Y.S.2d 661
• Parties: Marie-Elise OTT, an infant, etc., Respondent, v. William BARASH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 661

491 N.Y.S.2d 661

109 A.D.2d 254

Marie-Elise OTT, an infant, etc., Respondent, v. William BARASH, Appellant.

Supreme Court, Appellate Division Second Department.

July 1, 1985.

Maloney, Murphy, McLoone, Dobise & McGrane, Williston Park (John W. Hoefling, Williston Park, of counsel), for appellant.

Gloria W. Ott, Locust Valley, for respondent.

Before BRACKEN, J.P., and NIEHOFF, RUBIN and EIBER, JJ.

BRACKEN, Presiding Justice.

The question for our consideration is whether the plaintiff, who was allegedly injured as the result of the negligence of a New York State employee, may maintain a cause of action for negligence against that employee in the Supreme Court after having settled a prior action against the State in the Court of Claims to recover damages for the same injuries.

The infant plaintiff in this action was allegedly injured on November 18, 1979 when she was thrown from a horse while riding at the Planting Fields Arboretum in Oyster Bay, Nassau County. It is alleged in the plaintiff's first cause of action that her fall was brought about when the defendant Barash, a groundskeeper at the arboretum, operated his motor vehicle in close proximity to the plaintiff and her horse and repeatedly sounded the horn of the vehicle, thereby causing the horse to become frightened and to rear, throwing the plaintiff to the ground. There is no dispute that, at the time of the accident, the defendant was operating a State-owned vehicle within the scope of his duties as a State employee.

A claim was commenced against the State of New York in the Court of Claims by the infant plaintiff herein and her father, John G. Ott, seeking damages in the sum of $513,906.80 (including derivative damages allegedly suffered by claimant John G. Ott). The claim alleged that the State had been negligent in hiring its employee and in failing to provide for the safety of those persons lawfully using its facilities. In addition, the claim alleged in substance that the State was vicariously liable for the tortious acts of its employee under the theory of respondeat superior. During trial in the Court of Claims, the claimants settled their claim against the State for the sum of $30,000; John G. Ott, individually and as parent and natural guardian of the infant claimant, executed a general release in favor of the State in consideration thereof. By its terms, the release discharged the State and its "heirs, executors, administrators, successors and assigns", but no provision was made for the release of its employees.

Following the settlement of the claim in the Court of Claims, the infant plaintiff commenced the instant action against defendant Barash, the State employee, in the Supreme Court, Nassau County. The amended verified complaint contained one cause of action sounding in negligence and two causes of action sounding in intentional tort, and recovery of damages in the sum of $500,000 was sought on each cause of action. The defendant served an answer to the amended complaint which asserted, inter alia, that the plaintiff was barred and collaterally estopped from maintaining the instant action by reason of her prior settlement with, and release of, the State of New York.

Following the joinder of issue, the defendant moved for an order dismissing the complaint in its entirety and granting summary judgment upon the ground, inter alia, that the action could not be maintained because of the prior settlement and release (CPLR 3211[a][5]; CPLR 3212[b] ). In addition, the defendant sought dismissal of the two causes of action sounding in intentional tort (CPLR 3211[a][7] ). By order dated June 10, 1983, Special Term (Brucia, J.) granted the motion to the extent of dismissing the latter causes of action. However, the court declined to dismiss or to grant summary judgment upon the cause of action sounding in negligence, concluding that it was not barred by plaintiff's prior settlement with, and release of, the State in the Court of Claims. The defendant now appeals to this court from so much of the order as denied that branch of his motion which was to dismiss the first cause of action and for summary judgment as to that cause of action. We conclude that there should be an affirmance.

Defendant's principal contention on appeal is that, by reason of the statutory obligation of the State of New York to indemnify its employees (Public Officers Law § 17[3][a] ), the State is the real party in interest in this action, because any recovery by the plaintiff against the defendant employee would ultimately be paid by the State. Defendant further contends that the plaintiff's prior settlement with the State in the Court of Claims in a claim arising from the same injuries constitutes a bar to the present Supreme Court action under the doctrine of res judicata, the component doctrine of collateral estoppel, and the related prohibition against double recovery.

To determine if the State is the real party in interest in an action by an injured plaintiff against an employee of the State, by reason of the State's statutory duty to indemnify and save harmless, we look first to the statute. Public Officers Law § 17(3)(a) provides:

"3. (a) The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee."

The effect of this statute is to protect a State employee from financial loss occasioned by his negligence while acting within the scope of his employment (De Vivo v. Grosjean, 48 A.D.2d 158, 160, 368 N.Y.S.2d 315). It does so by establishing an employee's right to be indemnified by the State in the amount of any judgment or settlement arising under the circumstances prescribed therein. The statute does not, however, impose direct liability upon the State for the negligent acts and omissions of its employee ^* (Olmstead v. Britton, 48 A.D.2d 536, 539, 370 N.Y.S.2d 269; see also, Wassef v. State of New York, 98 Misc.2d 505, 507-08, 414 N.Y.S.2d 262, affd. 73 A.D.2d 848, 422 N.Y.S.2d 550), nor does it purport to limit the remedies available to an injured plaintiff in a particular case (Olmstead v. Britton, supra; De Vivo v. Grosjean, supra, 48 A.D.2d at p. 160, 368 N.Y.S.2d 315; Matter of Flannery v. State of New York, 91 Misc.2d 797, 803-04, 399 N.Y.S.2d 88). In fact, Public Officers Law § 17(5) expressly provides:

"5. The benefits of this section shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party nor shall any provision of this section be construed to affect, alter or repeal any provision of the workers' compensation law."

Thus, § 17 must be construed as simply creating a cause of action on behalf of State employees against the State for indemnification, without affecting the remedies available to an injured plaintiff. The plaintiff may maintain an action against the employee tort-feasor in the Supreme Court, even where the employee's tortious conduct was committed in the course of his employment (De Vivo v. Grosjean, supra, 48 A.D.2d at p. 160, 368 N.Y.S.2d 315; Olmstead v. Britton, supra, 48 A.D.2d at p. 539, 370 N.Y.S.2d 269; Matter of Flannery v. State of New York, supra, 91 Misc.2d at pp. 803-04, 399 N.Y.S.2d 88); or alternatively, the plaintiff may pursue a claim directly against the State, but jurisdiction over such a claim lies exclusively in the Court of Claims (see, Court of Claims Act §§ 8, 9; Schaffer v. Evans, 57 N.Y.2d 992, 994, 457 N.Y.S.2d 237, 443 N.E.2d 485; Parsa v. State of New York, 100 A.D.2d 899, 900, 474 N.Y.S.2d 562, revd. on other grounds 64 N.Y.2d 143, 485 N.Y.S.2d 27, 474 N.E.2d 235; Baisley v. Town of Kent, App.Div., 489 N.Y.S.2d 539).

The operation of § 17 is best illustrated by examining the several cases construing the provision. In De Vivo v. Grosjean, 48 A.D.2d 158, 368 N.Y.S.2d 315, supra, plaintiff was allegedly injured when the motor vehicle she was operating was struck by a vehicle owned by the State of New York and operated by a State employee in the course of his employment. Plaintiff commenced an action against the employee personally in the Supreme Court to recover damages for personal injuries and injury to her property. Defendant moved to dismiss the action, contending that the statutory indemnification provision of § 17 caused the State to be the real party in interest, thereby vesting the Court of Claims with exclusive jurisdiction over the action. The Appellate Division, Third Department, disagreed and held that the statute did not deprive an injured plaintiff of his right to bring a cause of action against a negligent State officer or employee in the Supreme Court. Rather, the statute merely created a cause of action on behalf of the officer or employee against the State for indemnification (De Vivo v. Grosjean, supra, 48 A.D.2d at p. 160, 368 N.Y.S.2d 315).

Similarly, in Olmstead v. Britton, 48 A.D.2d 536, 370 N.Y.S.2d 269, supra, plaintiff allegedly suffered personal injuries when he was struck by a truck which had driven off the roadway by reason of the negligence of an officer of the New York State Police, who, in the course of his employment, had turned his State Police vehicle in front of the truck. Plaintiff commenced an action in the Supreme Court against the owner and operator of the truck and against the police officer. In addition, plaintiff served a notice of claim, seeking damages for the same injuries, against the State. The defendant police officer moved to dismiss the...