Travelers Indem. Co. v. State

• Decision Date: 04 December 1969
• Docket Number: Nos. 48813,49547,s. 48813
• Citation: 305 N.Y.S.2d 689,33 A.D.2d 127
• Parties: TRAVELERS INDEMNITY CO., Respondent, v. STATE of New York, Appellant. Claims
• Court: New York Supreme Court — Appellate Division

Page 689

305 N.Y.S.2d 689

33 A.D.2d 127

TRAVELERS INDEMNITY CO., Respondent, v. STATE of New York, Appellant.

Claims Nos. 48813, 49547.

Supreme Court, Appellate Division, Third Department.

Dec. 4, 1969.

Donovan, Donovan, Maloof & Walsh, New York City (John P. Walsh, New York City, of counsel) for respondent.

Louis K. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Grace K. Banoff, Albany, of counsel) for appellant.

Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT, and SWEENEY, JJ.

REYNOLDS, Justice.

This is an appeal from an order and judgments of the Court of Claims entered thereon granting summary judgment in an amount equal to that part of respondent's contribution to the Motor Vehicle Liability Security Fund which is attributable to premiums for uninsured motorist insurance.

The State first urges that the Court of Claims lacks jurisdiction over the instant case. However, the claim here involved is for a refund of moneys paid into a State fund and thus we find that the Court of Claims had jurisdiction (cf. Guaranty Trust Co. of New York v. State of New York, 299 N.Y. 295, 86 N.E.2d 754, rearg. den. 300 N.Y. 498, 88 N.E.2d 726; Cardinal v. State of New York, 279 App.Div. 326, 109 N.Y.S.2d 818, mod.304 N.Y. 400, 107 N.E.2d 569, rearg. den. 304 N.Y. 732, 108 N.E.2d 400, cert. den. 345 U.S. 918, 73 S.Ct. 729, 97 L.Ed. 1351). The fact that in deciding the issue of respondent's entitlement to a refund the Court of Claims had to pass upon the validity of a determination made by the Superintendent of Insurance does not affect this conclusion. In comparable situations two separate actions have not been required (see China City Corp. v. State of New York, 51 Misc.2d 429, 273 N.Y.S.2d 272) and, of course, such a position favors efficient judicial administration. Nor does section 34 of the Insurance Law dictate a different result here. Section 34 does not mandate review of a superintendent's determination Solely by an article 78 proceeding to the exclusion of raising such issue in the instant suit for a refund in the Court of Claims. Rather it is clear from the legislative history that section 34 was written in its present form to insure that all and not just some of the determinations made by the commissioner were reviewable by an article 78 proceeding. (See Matter of Guardian Life Ins. Co. of America v. Bohlinger, 308 N.Y. 174, 124 N.E.2d 110, rearg. den. 308 N.Y. 810, 125 N.E.2d 867; Memorandum of State Insurance Department in support of chapter 932 of the Laws of 1956 (N.Y.Legis.Annual, 1966, p. 274).) Accordingly, we find jurisdiction properly exercised by the Court of Claims.

With respect to the merits, section 333 of the Insurance Law defines 'Net direct written premiums' upon which payments are calculated as those '* * * written on...