Opinion
# 2017-045-003 Claim No. 123933 Motion No. M-89206
01-09-2017
MOHAMMAD ALYAS v. THE STATE OF NEW YORK
The Law Office of Gary Weinberg2 By: No Appearance Gordon, Rees, Scully & Mansukhani, LLP By: Amy Curley, Esq.
Synopsis
third-party claimant's default motion against a sub-contractor, not the insurance company. No jurisdiction over the sub-contractor so third-party claim dismissed.
Case information
| UID: | 2017-045-003 |
| Claimant(s): | MOHAMMAD ALYAS |
| Claimant short name: | ALYAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | THE STATE OF NEW YORK |
| Third-party defendant(s): | CITY RESTORATION & MAINTENANCE INC. |
| Claim number(s): | 123933 |
| Motion number(s): | M-89206 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | |
| Defendant's attorney: | Gordon, Rees, Scully & Mansukhani, LLP By: Amy Curley, Esq. |
| Third-party defendant's attorney: | No Appearance |
| Signature date: | January 9, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
After service of this motion, claimant's counsel changed from The Law Office of Gary Weinberg to The Perecman Firm, PLLC.
Decision
The following papers were read and considered by the Court on this motion: Defendant/Third-Party Claimant's Notice of Motion and Defendant/Third-Party Claimant's Affirmation with annexed Exhibits A-C.
Defendant/Third-Party Claimant, the State of New York, has brought this motion pursuant to CPLR § 3215 (a) and (b) seeking an order directing that a default judgment be entered against third-party defendant, City Restoration & Maintenance Inc. Claimant, Mohammad Alyas, as well as the third-party defendant have not taken a position on this motion.
The underlying claim in this matter concerns an accident which occurred October 23, 2012 at a major reconstruction project which was being conducted at the New York State Department of Motor Vehicles offices, located at 250 Veterans Memorial Highway, Hauppauge, New York. Claimant alleged that 250 Veterans Memorial Highway is owned and operated by the State of New York. On the date of the accident claimant was employed by Webnest Construction Company (Webnest), the general contractor on the reconstruction project, as a brick caulker/pointer. Claimant asserted that on October 23, 2012 he was on a scaffold outside the front of the building adjacent to the second floor. At that time the scaffold fell from beneath him causing him to strike the front of the building. He was however utilizing a safety harness which prevented him from falling onto the ground. Claimant determined that City Restoration & Maintenance Inc. had erected the scaffolding.
On February 9, 2016, the State of New York, served a "Third Party Summons and Complaint" upon City Restoration & Maintenance Inc. To date, City Restoration & Maintenance Inc. has failed to respond to the Complaint. The State of New York now moves for a default judgment against City Restoration & Maintenance Inc.
The Court of Claims is a court of limited jurisdiction wherein claims primarily seeking monetary damages against the State of New York are brought (see Court of Claims Act [CCA] § 9). In certain circumstances, the Court of Claims has jurisdiction to issue a declaratory judgment involving the obligation of an insurer to indemnify or defend a defendant in an action pending in the Court of Claims (CCA § 9 [9-a]). However, "a contractor with a tort or contractual obligation to indemnify a defendant in this court is not an insurer within the meaning of section 9 (9-a)" (Sangirardi v State of New York, 152 Misc 2d 423, 428 [Ct Cl, Weisberg J., 1991]). Thus, this Court lacks jurisdiction over the sub-contractor, City Restoration & Maintenance Inc. and is constrained to dismiss the third-party claim (id.; see Casasola v State of New York, UID No 2009-036-538 [Ct Cl, Schweitzer, J., August 26, 2009]; Gutierrez v State of New York, UID No. 2006-029-605 [Ct Cl, Mignano, J. , December 19, 2006]; Neely v State of New York, UID No. 2006-016-028 [Ct Cl, Marin, J., April 26, 2006]; Scott v State of New York, UID No. 2004-013-064 [Ct Cl, Patti, J., December 30, 2004]; Lopez v State of New York, Claim No. 84701 [Ct Cl, Silverman J., March 30, 1993]).
Therefore, for the foregoing reasons, the motion is denied and the third-party claim is dismissed.
January 9, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims