Tompkins v. State, 34193
| Decision Date | 31 July 1958 |
| Docket Number | No. 34193,34193 |
| Citation | 6 A.D.2d 977,176 N.Y.S.2d 804 |
| Parties | Burdette R. TOMPKINS and Edith G. Tompkins, Claimants-Respondents, v. The STATE of New York, Appellant. Claim |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., for appellant.
DeGraff, Foy, Conway & Holt-Harris, Albany, for claimants-respondents.
Before BERGAN, J. P., and GIBSON, HERLIHY, and REYNOLDS, JJ.
Appeal from an order of the Court of Claims.
The claim pleads causes of action against the State of New York based on tort. The State appeals from the denial of its motion in the Court of Claims to dismiss the claim. It is alleged that 'the State of New York through its Department of Public Works and/or Thruway Authority' caused the wrongs of which claimants complain. In respect of the Thruway Authority this is not a claim made against the Authority as such in the Court of Claims under Public Authorities Law, § 361-b, which authorizes claims against the Authority, as distinguished from the State itself, to be prosecuted in the Court of Claims. It is, on the contrary, a claim against the State of New York itself for the torts of the Thruway Authority. No doubt exists that a claim against the State lies for the torts of 'its Department of Public Works'. The State contends that under the alternative form of pleading used here ('Department of Public Works and/or Thruway Authority') the claimants must show a good cause of action to be stated by both alternatives; and if either alternative fails in this respect the claim must be dismissed. The claimants' brief and argument concede this principle, but suggest a claim is properly pleaded against the State for the torts of the Thruway Authority.
Claimants contend that what they have pleaded is 'an express agency' of the Thruway to act for the State in the reconstruction of a portion of public highway No. 5499, by which they were damaged through tort. The legal possibility might exist that if the Thruway Authority contracted with the State to do work beyond its official functions described in Public Authorities Law, the State would incur a liability in its role as State for torts. But this is not what the claim pleads. It alleges that the tort was committed by the State 'through its * * * Thruway Authority'. This merely pleads that the Thruway Authority was acting for the State within its statutory functions. The Authority is a creature of the State, and a 'public corporation' of ...
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...for its negligence in the performance of its usual functions, including the maintenance and operation of the Thruway (Tompkins v. State of New York, 6 A.D.2d 977, 176 N.Y.2d 804, revd. on other grounds, 7 N.Y.2d 906, 197 N.Y.S.2d 475, 165 N.E.2d 424; Matter of Santana v. New York State Thru......
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Tomlinson Const. Co. v. State, 34472
...153 N.Y.S.2d 28; Strang v. State, 206 Misc. 734, 134 N .Y.S.2d 871; Glassman v. Glassman, 309 N.Y. 436, 131 N.E.2d 721; Tompkins v. State, 6 A.D.2d 977, 176 N.Y.S .2d 804; Plumbing, Heating, Piping & Air Conditioning Contractors Ass'n v. New York State Thruway Authority, 4 A.D.2d 541, 167 N......
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Kosciuszko v. State
...1 N.Y.2d 374, 153 N.Y.S.2d 28. But the State is not also separately liable for the torts of the Thruway Authority, Tompkins v. State, 1958, 6 A.D.2d 977, 176 N.Y.S.2d 804. That is a separate corporate entity. Plumbing, etc. Association v. New York State Thruway Authority, 1957, 4 A.D.2d 541......
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...specifically name the New York State Thruway Authority as a party negligent. This is not a situation such as arose in Tompkins v. State, 6 App .Div.2d 977, 176 N.Y.S.2d 804. Here both the notice of intention and the claim state a cause of action against the New York State Thruway Authority ......