Opinion
# 2012-040-023 Claim No. 120588 Motion No. M-80874
04-24-2012
NYS Local Govt. Svcs.Corp. v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss claim for failure to state a cause of action granted. Case information
UID: 2012-040-023 In the Matter of the Claim of Claimant(s): NEW YORK STATE LOCAL GOVERNMENT SERVICES CORPORATION Claimant short name: NYS Local Govt. Svcs.Corp. Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant Caption amended to reflect the State of New York as name) : the proper defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 120588 Motion number(s): M-80874 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY SHANTZ & BELKIN Claimant's attorney: By: Frederick F. Shantz, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Joan Matalavage, Esq., AAG Third-party defendant's attorney: Signature date: April 24, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's pre-answer motion to dismiss pursuant to CPLR 3211(a)(7) on the grounds that the Claim fails to state a cause of action is granted and the Claim is dismissed.
The Claim, which was filed with the Clerk of the Court on November 15, 2011, seeks damages for "common law tort indemnity and breach of contract which will arise if and when the Claimant is compelled to pay any judgment or settlement resulting from an accident which occurred on or about October 26, 2009 on property leased by [Defendant]" (Claim, unnumbered ¶ 2, p. 2).
The Claim further alleges that the cause of action for common law indemnity arises from the alleged liability of Claimant to Scott A. LaForge in an action pending in Supreme Court, Albany County, in which, if Claimant is held liable, it will be as a direct and proximate result of Defendant's negligence (Claim, unnumbered ¶ 3, p. 2).
The Claim also alleges that the cause of action for breach of contract arises from Defendant's breach of a lease provision requiring Defendant to obtain insurance to defend, indemnify and hold Claimant harmless in the Supreme Court, Albany County action commenced by Mr. LaForge (Claim, unnumbered ¶ 4, p. 2).
Defendant moves to dismiss the Claim, asserting that the Court lacks subject matter jurisdiction as the Claim is premature.
A claim for indemnification does not accrue until payment by the party seeking indemnity (see Bay Ridge Air Rights v State of New York, 44 NY2d 49, 54 (1978); Conley v Salt City Energy Venture, L.P., 234 AD2d 909 [4th Dept 1996]; The New York and Ogdensburg Railway Company, Inc. v State of New York, Ct Cl, Claim No. 107017, Motion No. M-66236, June 2, 2003, Sise, J. [UID No. 2003-028-545]). Claimant has not been ordered to pay, nor has it paid, any money to Scott A. LaForge. Based upon the foregoing, this Claim has not yet accrued, is not ripe for adjudication and is premature (see Bay Ridge Air Rights v State of New York, supra; see also State of New York v Syracuse Rigging Co., 249 AD2d 758, 760 [3d Dept 1998]).
Similarly, the portion of the Claim asserting a breach of contract is also premature. A claim accrues pursuant to the Court of Claims Act when damages become ascertainable (Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766, 768 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Waters of Saratoga Springs, Inc. v State of New York, 116 AD2d 875, 877 [3d Dept 1986], affd 68 NY2d 777 [1986]). Here, as stated above, Claimant has not yet sustained any damages. Thus, the Court concludes this portion of the Claim is also premature.
Based upon the foregoing, Defendant's motion to dismiss is granted and the Claim is dismissed.
April 24, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to Dismiss: Papers Numbered
Notice of Motion, Affidavit in Support
and Exhibits attached 1
Frederick F. Shantz Affidavit in Opposition
and Exhibits attached 2
Joseph Goceljak Affidavit in Opposition 3
Reply Affidavit and Exhibit attached 4
Papers Filed: Claim