Waterman v. State

• Decision Date: 01 July 1963
• Docket Number: No. 40042,No. 40040,No. 40041,No. 40043,40040,40041,40042,40043
• Citation: 19 A.D.2d 264,241 N.Y.S.2d 314
• Parties: George E. WATERMAN, Appellant, v. The STATE of New York, Respondent. Claim George E. WATERMAN, as Guardian of Richard Waterman, Appellant, v. The STATE of New York, Respondent. Claim Ruth WATERMAN, Appellant, v. The STATE of New York, Respondent. Claim Roger H. WILLIAMS, Appellant, v. The STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 314

241 N.Y.S.2d 314

19 A.D.2d 264

George E. WATERMAN, Appellant, v. The STATE of New York, Respondent.

Claim No. 40040.

George E. WATERMAN, as Guardian of Richard Waterman, Appellant, v. The STATE of New York, Respondent.

Claim No. 40041.

Ruth WATERMAN, Appellant, v. The STATE of New York, Respondent.

Claim No. 40042.

Roger H. WILLIAMS, Appellant, v. The STATE of New York, Respondent.

Claim No. 40043.

Supreme Court, Appellate Division, Fourth Department.

July 1, 1963.

Williams & Ray, Utica, for appellants; Roger H. Williams, and Anthony F. Shaheen, Utica, of counsel.

Louis J. Lefkowitz, Albany, for respondent; Gerard R. Gemmette, Schenectady, and Paxton Blair, Albany, of counsel.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and McCLUSKY, JJ.

PER CURIAM.

The claimants appeal from an order of the Court of Claims dismissing their claims on the ground (1) that the claims were not timely filed and (2) that the claims were insufficient in law to state a cause of action.

On September 28 and 29, 1959, a trial had been held in the Court of Claims before Judge Heller of the three Waterman claims against the State of New York and the New York State Thruway Authority. The claims grew out of an automobile accident which had occurred on June 29, 1957, on the New York State Thruway. On October 27, 1960, Judge Heller rendered a judgment in favor of the claimants awarding them damages against the Thruway Authority in the total amount of over $61,000. Judgments were accordingly entered November 22, 1960.

Some time during the early part of November, 1960, the official court stenographer who had taken the minutes of the trial, lost the stenographic notes.

The Thruway Authority appealed to this court and moved for an order vacating and setting aside the judgments on the ground that a record could not be prepared in view of the loss of the stenographic minutes. This motion was granted and the judgments were accordingly vacated and set aside, without prejudice to a motion for the reinstatement of the appeal 'if it is found that an adequate record can be presented to this Court' (13 A.D.2d 619, 214 N.Y.S.2d 671).

On June 19, 1961, the parties appeared again before Judge Heller and the case was retried, the parties having abandoned any effort to perfect the appeal from the former judgments. After a retrial, Judge Heller again decided in favor of the claimants and awarded them substantially the same amounts as he had awarded them in his decision upon the first trial. Judgments were accordingly entered on November 8, 1961, in the total amount of $61,088.11. This time, the Thruway Authority did not appeal, but paid the judgments.

On January 18, 1962, the claimants filed the present claims seeking damages allegedly sustained by reason of the loss by the official stenographer of his notes of the testimony at the first trial. The damages sought consist of (1) the amount of the interest on the former judgments from the date of their entry to the date of the entry of the second judgments, and (2) the expenses of the second trial. The attorney for the claimants also filed a claim on his own behalf seeking damages representing the value of his services in retrying the case.

The court below held that the claims were not timely filed under section 10, subdivision 3, of the Court of Claims Act. The statute requires that a claim against the State be filed within 90 days after the accrual of the claim unless the claimant files a written notice of intention to file within that period.

The claims in this case were filed 71 days after the date of entry of the judgments after the second trial and 82 days after the filing of the decision upon the second trial.

'The expression 'claim accrued' is not identical with the expression 'cause of action accrued.' The claim accrues when it matures, and the words 'claim accrued' have the same meaning as 'damages accrued" (Dufel v. State, 198 App.Div. 97, 102, 189 N.Y.S. 759, 762; Edlux Construction Corp. v. State, 252 App.Div. 373, 374, 300 N.Y.S. 509, 511, aff'd. 277 N.Y. 635, 14 N.E.2d 197).

The damages were not ascertainable until the date of the filing of the second decision. Until then, it could not be known whether the necessity for a second trial caused by the loss of the stenographer's minutes would result in any damage to the claimants, or how much the damage would be. The total amount of the awards might have been so much greater than the original awards that there would be no damage, or the total awards might have been considerably less than the original awards, in which case the damages would have been much greater than they in fact turned out to be. Under these circumstances, we think it is proper to apply the principle laid down in the Court of Claims cases that, in the case of continuing injury, the extent of which is presently unascertainable, the claim is not deemed to have accrued until the extent of the damages can be ascertained (Moltion v. State, 193 Misc. 850, 84 N.Y.S.2d 521, aff'd. 277 App.Div. 835, 97 N.Y.S.2d 921, aff'd. sub nom Taylor v. State, 302 N.Y. 177, 185, 96 N.E.2d 765, 768; Edlux Construction Corp. v. State, 252 App.Div. 373, 300 N.Y.S. 509, aff'd. 277 N.Y. 635, 14 N.E.2d 197; Morrison & Quinn, Inc. v. State, 204 App.Div. 623, 627, 199 N.Y.S. 296, 299; Paduano v. State, 203 App.Div. 503, 196 N.Y.S. 804; Dufel v. State, 198 App.Div. 97, 189 N.Y.S. 759; Allen v. State, 208 Misc. 385, 389, 143 N.Y.S.2d 867, 872; DiLaura v. State, 169 Misc. 912, 9 N.Y.S.2d 272; see also Consiglio v. State, 247 App.Div. 832, 286 N.Y.S. 32; Davison, Claims Against the State, § 27.07, pp. 230-231). While this was not a case of continuing injury, the principle laid down in the cited cases may fairly be applied here. We therefore hold that the claims were timely filed.

We cannot agree with the theory of the court below that the claims are insufficient in law because the stenographer's negligence was not the proximate cause of the damage. The question of proximate cause, under the circumstances of this case, is a question of fact to be decided after a full development of the facts. The court below seems to have felt that the damages were speculative and conjectural since the Appellate Division might have reversed the decision in favor of the claimants even if a proper record had been perfected but it seems to us that this is the wrong way to look at the case. The loss of the minutes was the direct proximate cause of the need for a new trial. The damages in the way of loss of interest and expenses of retrial were consequences of the stenographer's negligence. The liability thus established prima facie cannot be escaped by speculating that the damage might have occurred anyway. 'It is not enough to speculate 'that the same harm might possibly have been sustained had the actor not been negligent' Restatement of Torts, § 432, comment The negligent act must be regarded as one of the actual causes of the injury if it was a substantial factor in bringing the injury about. Restatement of Torts, § 431' (Rugg v. State, 284 App.Div. 179, 182, 131 N.Y.S.2d 2, 6).

The Attorney General seeks to sustain the dismissal of the claims upon a ground rejected by the court below, namely, that the negligence of the court stenographer cannot be made the basis of a claim against the State because he is a judicial officer for whose conduct the State is not liable. It seems clear that a court stenographer is not a judicial officer within the meaning of the cases holding that the State is not responsible for the acts of judicial officers. There may be a question as to whether the stenographer should be treated as an independent contractor rather than as an employee of the State. The exact nature of the relationship of the stenographer to the State is in need of further development upon a trial. It appears that the stenographer also served as a deputy clerk of the Court of Claims. By what authority, statutory or otherwise, he was given this title does not appear. In any event, the question of whether the State is liable for the stenographer's negligence under the principle of respondeat superior presents a question of fact which cannot be summarily disposed of on a motion to dismiss.

With respect to the attorney's separate claim for the value of his services in connection with the second trial, other considerations may be involved but they, too, should be explored upon a plenary trial.

We may assume that the retainer of the attorney was on a contingent fee basis, without any provision...