O'Sullivan v. State
| Decision Date | 14 July 1975 |
| Docket Number | Nos. 53706,53783,59044,s. 53706 |
| Citation | 371 N.Y.S.2d 766,83 Misc.2d 426 |
| Parties | James O'SULLIVAN, Claimant, v. The STATE of New York, Defendant. Linda LaBUDA, Claimant, v. The STATE of New York, Defendant. Linda LaBUDA, now Linda LaBuda O'Sullivan, Claimant, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
William P. Curran, Rosendale (submitting), for claimant James O'sullivan.
Matthew A. Weishaupt, Jr., Kingston (submitting), for claimant Linda LaBuda.
Maynard, O'Connor & Smith, Albany, by Michael E. Catalinotto, Saugerties, of counsel, for claimant Linda LaBuda O'Sullivan.
Louis J. Lefkowitz, Atty. Gen., by Mordecai Bressler, Asst. Atty. Gen., of counsel, for the State.
On March 18, 1971, the Claimant, Linda LaBuda (now Linda LaBuda O'Sullivan and wife of the Claimant, James O'Sullivan) was operating her motor vehicle on Route 213 in the Village of Rosendale, New York, when she lost control of said vehicle as it slid on the roadway and struck a stone wall. Both Linda and James O'Sullivan, a passenger in the vehicle at the time, sustained personal injuries as a result of the accident.
On April 16, 1971, a claim on behalf of James O'Sullivan was filed with the Clerk of this Court. This Claim, numbered 53706, in summary, recites that said Claimant suffered personal injuries as a result of the negligence of the State of New York, that such negligence caused the accident on March 18, 1971 and that the Claimant has suffered damages as a result in the amount of $206,000.00.
On May 4, 1971, a claim on behalf of Linda LaBuda was filed with the Clerk of this Court. This Claim, numbered 53783, recites similar allegations as against the State of New York and seeks damages in the amount of $104,000.00.
Also, at some time during 1971, a suit was instituted in Supreme Court by Claimant, James O'Sullivan (as plaintiff) against Claimant, Linda LaBuda (as defendant) seeking damages for the personal injuries received as a result of the March 18, 1971 accident alleging that such injuries were caused by reason of the negligence of Linda LaBuda. This suit was tried to a conclusion before a jury in Supreme Court, County of Ulster, and the jury returned a verdict of $40,000.00 in favor of James O'Sullivan and against Linda LaBuda on January 11, 1973. A motion to set aside the verdict was denied by Cobb, J., on March 14, 1973, and judgment was entered against Linda LaBuda in the Office of the Clerk of Ulster County on March 26, 1973.
On June 25, 1973, a Notice of Intention to File Claim was filed with the Clerk of this Court on behalf of Linda LaBuda, now Linda LaBuda o'Sullivan, seeking indemnity or apportionment from the State of New York pursuant to Dole v. Dow Chemical Co., infra, and claiming that the Supreme Court judgment against Linda LaBuda was satisfied on June 5, 1973. This Claim, now numbered 59044, was filed with the Clerk of this Court on January 17, 1975.
Numerous issues have been presented by the motions of the various parties herein, and these issues are now discussed separately by the Court in order that its final determinations herein as to the several applications may be
clear. CLAIM NO. 59044; MOTION NO.
FILE--ACCRUAL OF CLAIM FOR
The Court now proceeds to a consideration of the issues involving indemnification or apportionment under the Court of Appeals decision in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) ().
The Claimant, Linda LaBuda, now Linda O'Sullivan, having been found liable to James O'Sullivan as a result of her operation of her vehicle on March 18, 1971 and having satisfied that judgment, filed a claim against the State for indemnification or apportionment, alleging that the State was a joint tort-feasor.
The Notice of Intention to File Claim was filed with the Clerk of this Court on June 25, 1973, some two years after the date of the accident; two years after the suit in Supreme Court against her by James O'Sullivan was instituted; more than five months after the jury verdict found her liable; 102 days after the trial judge (Cobb, J.) denied her motion to set aside the verdict; on the ninetieth day after that judgment was entered in the County Clerk's Office and only a few days after the judgment was satisfied of record.
The instant motion by the State raises two critical issues:
(1) For jurisdictional purposes, is a claim for apportionment against the State, a claim based upon tort and thereby governed by subdivision 3 of Section 10 of the Court of Claims Act, or one based on contract, express or implied, or any other claim not otherwise provided for and thereby governed by subdivision 4 of Section 10 of the Court of Claims Act?, and
(2) When does a claim for a Dole type apportionment against the State accrue for purposes of computing the jurisdictional time limitations for filing such a claim?
Prior to the landmark decision in Dole, the operative terminology with respect to the rights between and amongst joint tort-feasors was 'contribution' and 'indemnity'. Contribution was defined as the right of one tort-feasor, having been found jointly liable to the plaintiff and having paid more than his pro-rata share under a Joint judgment recovered against him and others, to seek reimbursement from the other tort-feasors also held liable under such joint judgment of the amount paid in excess of his pro-rata share. Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691 (1959). Indemnity was defined as the right, based upon contract, express or implied, of one tort-feasor, having paid in full on a judgment entered against him, to seek reimbursement from a joint tort-feasor of the amount so paid. The basis of such latter right is founded in the judicially recognized notion that one who is secondarily (or passively) negligent is entitled to be indemnified by the primary (or active) wrongdoer. Putvin v. Buffalo Elec. Co., supra. Regardless of the technical distinctions, a separate action for indemnity or contribution was governed by the six-year statute of limitations (CPLR 213) and not by the statutory period for negligence actions. Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589 (Second Dept., 1964).
The Court's decision in Dole in essence, removed the inflexibility of the rights to contribution and indemnity by creating a new right of apportionment. Under Pre-Dole law, unless tort-feasors were sued jointly and held liable equally, the right of contribution under the statute as it then existed would not apply. This new right of apportionment does have the practical effect of eliminating the distinctions between contribution and indemnity and while not abrogating the statutory right of contribution, rendering that classic statutory relief obsolete in most cases. In cases involving multiple tort-feasors, the Court of Appeals has also eliminated the prior active-passive distinction in certain indemnity type cases and now permits a consideration of the relative responsibilities of tort-feasors and an apportionment of their liability regardless of whether they were sued jointly in the underlying damage action or not.
The decision in Dole, left undecided the question as to whether or not the newly created right of apportionment would be governed by the statute of limitations for negligence actions, or by the six-year period applicable to 'contribution' and 'indemnity' claims as before. Resolution of this issue is peculiarly necessary and distinctive as applied to the State of New York with respect to its availability to suit only in the Court of Claims and as well to the jurisdictional requirements of timely filing of claims under the Court of Claims Act.
Section 10, subdivision 3 of the Court of Claims Act provides as follows:
Section 10, subdivision 4, of the Court of Claims Act provides:
All of the provisions of Section 10 of the Court of Claims Act are jurisdictional in nature and must, therefore, be strictly construed. Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581 (Fourth Dept., 1971); Dimovitch v. State of New York, 33 A.D.2d 146, 307 N.Y.S.2d 26 (Fourth Dept., 1969); Lewis v. State of New York, 69 Misc.2d 1031, 332 N.Y.S.2d 292 (Ct. of Claims, 1972). Upon analysis of the two subdivisions set forth above, it is the opinion of this Court that a claim for apportionment against the State of New York falls within the provisions of subdivision 4. A claim for apportionment is not 'a claim to recover damages for Injuries to property or for Personal injuries caused by the tort . . . of the state'. It is a claim that arises upon and from the existence of a liability for injury and damages to an injured party and rests upon the relationship of the parties not as joint tort-feasors in its classical sense, but as persons subject to liability for the same injury and damages. The right to apportionment against the State exists irrespective of whether the claimant seeking apportionment has...
To continue reading
Request your trial
- Berlin & Jones, Inc. v. State
-
Philip Morris USA Inc. v. Skolnick
...shared in the causation of the injuries and damage giving rise to the apportionment-seeker's liability.” O'Sullivan v. State, 83 Misc.2d 426, 371 N.Y.S.2d 766, 781 (N.Y.Ct.Cl.1975) ; see also Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403, 409 (1973) (stating t......
-
Philip Morris U.S. Inc. v. Skolnick, 4D13-4696
...to have shared in the causation of the injuries and damage giving rise to the apportionment-seeker's liability." O'Sullivan v. State, 371 N.Y.S.2d 766, 781 (N.Y. Ct. Cl. 1975); see also Rogers v. Dorchester Assocs., 300 N.E.2d 403, 409 (N.Y. 1973) (stating that apportionment would "appl[y] ......
-
Thomas v. Burack, 2009 NY Slip Op 32647(U) (N.Y. Sup. Ct. 10/21/2009)
...[2008], citing Bay Ridge Air Rights, Inc. v. State, 44 NY2d at 54; Berlin & Jones, Inc. v. State, 85 Misc 2d 970 [1976]; O'Sullivan v. State, 83 Misc 2d 426, 436 [1975]; Court of Claims Act §10, subd. 4). Thus, Dr. Burack may seek contribution, for non-economic loss, from the state hospital......