Opinion
# 2017-030-505 Claim No. 124279 Motion No. M-88096
01-18-2017
JOSEPH SZYMASZEK v. THE STATE OF NEW YORK
ELMER ROBERT KEACH, III, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: JEANE L. STRICKLAND SMITH ASSISTANT ATTORNEY GENERAL
Synopsis
State "motion" seeking a declaratory judgment pursuant to Civil Practice Law and Rules §3001 and Court of Claims Act §9(9-a) denied as premature, since no third-party action pending [see 22 NYCRR §206.6(g)]. Underlying claim alleges inmate in DOCCS custody seriously injured during transport when bus came to a sudden stop. Negligence allegations in underlying claim include negligent operation of bus, failure to report accident, and failure to provide medical treatment.
Case information
| UID: | 2017-030-505 |
| Claimant(s): | JOSEPH SZYMASZEK |
| Claimant short name: | SZYMASZEK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION |
| Third-party defendant(s): | FIRST TRANSIT, INC., FIRSTGROUP AMERICA , INC.; INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA |
| Claim number(s): | 124279 |
| Motion number(s): | M-88096 |
| Cross-motion number(s): | |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | ELMER ROBERT KEACH, III, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: JEANE L. STRICKLAND SMITH ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | HODGSON RUSS, LLP BY: KEVIN D. SZCZEPANSKI, ESQ. and MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP BY: AARON F. CARBONE, ESQ. |
| Signature date: | January 18, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the State's motion:
1, 2 Notice of Motion, Declaratory Judgment Action (sic) by Jeane L. Strickland Smith, Assistant Attorney General, and Attached Exhibits
3 - 5 Affidavit in Opposition by Aaron F. Carbone, Maynard, O'Connor, Smith & Catalinotto, LLP, Attorneys for First Transit, Inc. and FirstGroup America, Inc., and Attached Exhibits; Memorandum of Law; Affidavit by William Brewer
6 Affirmation in Response to Motion for Declaratory Judgment by Elmer Robert Keach, III, Attorney for Joseph Szymaszek
7 - 9 Answer to Declaratory Judgment Action by The Insurance Company of the State of Pennsylvania, National Union Fire Insurance Company of Pittsburgh, PA.; Affirmation in Opposition to the State's Declaratory Judgment Motion by Kevin D. Szczepanski, Hodgson Russ, LLP, Attorneys for The Insurance Company of the State of Pennsylvania, National Union Fire Insurance Company of Pittsburgh, PA., and Attached Exhibits; Memorandum in Opposition to the State's Declaratory Judgment Motion
10, 11 Filed papers: Claim No. 124279, Answer
The underlying claim herein alleges that Joseph Szymaszek, an inmate in the custody of the New York State Department of Corrections and Community Supervision [DOCCS], while being transported by a "corrections bus" on January 10, 2014 from Downstate Correctional Facility, was seriously injured when the bus came to a sudden stop in an accident four hours into the trip. [Claim No. 124279, ¶ 4]. Mr. Szymaszek suggests that the bus driver who was driving the bus was compromised when he took over as a "replacement driver" at an interim stop at Mt. McGregor Correctional Facility during Mr. Szymaszek's trip, after having "already been driving for a significant period of time." [Id.]. After an additional four hours, the bus stopped in a rest area, and Mr. Szymaszek observed the driver "holding his right side and grimacing as if he was in pain." [Id.]. The bus was involved in the accident shortly after leaving the rest area. [Id.]. Mr. Szymaszek was violently thrown from his seat, and could not brace himself because his hands and legs were shackled to his waist.
Thereafter, although he and other inmates asked for medical help, Mr. Szymaszek alleges that DOCCS staff did not stop to report the accident or request medical assistance. Mr. Szymaszek remained on the bus for an additional four hours, suffering excruciating pain, until he was finally transported to Franklin Correctional Facility, where he and other inmates were escorted to the infirmary. He alleges that he has suffered severe and possibly permanent injuries to his neck, back and legs requiring him to wear a brace and walk with a cane. The negligence allegations in the claim include negligent operation of the bus, failure to report the accident, and failure to seek medical treatment.
The State of New York indicates that First Transit, Inc. entered into a contract with DOCCS to provide inmate transportation between facilities commencing February 1, 2013 and ending on January 1, 2018, under Contract #C161189. [See Declaratory Judgment Action, Exhibit B].
This "motion" seeks a declaratory judgment pursuant to Civil Practice Law and Rules §3001 and Court of Claims Act §9 (9-a), declaring that First Transit, Inc. and its insurance carriers, defend and indemnify the claim against the State of York brought by Mr. Szymaszek for the injuries he sustained in the incident occurring on January 10, 2014. Without addressing the merits of any ultimate application to have such contractor and its insurance company appear and defend, the State's motion must be denied because it is simply premature as no third-party claim is pending. 22 NYCRR §206.6(g).
Pursuant to Court of Claims Act §9 (9-a), the Court of Claims has jurisdiction:
"To make a declaratory judgment as defined in section three thousand one of the civil practice law and rules with respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in any action pending in the court of claims, provided that the court shall have no jurisdiction to enter a judgment against an insurer pursuant to this subdivision either: (i) for money damages; or, (ii) if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought."
22 NYCRR §206.6(g) provides:
"Actions for declaratory judgment, pursuant to section 9 (9-a) of the Court of Claims Act, shall be commenced by the filing with the clerk and service upon the third-party defendant of a notice of impleader, together with a third-party claim, in the nature of a complaint, and all prior pleadings in the action. Such papers shall also be served upon all other parties. Service upon the third-party defendant shall be made in the same manner as service of a claim under section 11 of the Court of Claims Act. The original third-party claim and two copies thereof shall be filed with the clerk within 10 days of such service. Responsive pleadings shall be served and filed in accordance with Rule 206.7."
No notice of impleader, or third-party claim appears to have been served to start such claim. Because the State has not commenced a third-party claim - indeed, only one insurer has tried to "answer" the "declaratory judgment action" the State has attached to its notice of motion, suggesting the confusion surrounding the current application - there is no "controversy involving the obligation of an insurer to indemnify or defend" [Court of Claims Act §9 (9-a)] actually pending.
Should the issue be raised, when and if a third-party claim is brought, by either the State's or a third-party defendant's motion, the parties should not be unmindful of Blake v First Transit Transp. Service, 126 AD3d 1054 (3d Dept 2015), lv to app denied, 25 NY3d 912 (2015), wherein the an inmate brought an action in State Supreme Court against First Transit - presumably the same entity providing transportation services to DOCCS pursuant to contract here - for injuries sustained when he lost his balance and hit his head while riding on a bus. Under the facts presented there - somewhat different than those alleged here - the Court ruled that the bus company was not liable, since it did not have actual or constructive notice of an unsafe condition resulting from its own lack of care, and the movement of the bus was not unusual or violent. Additionally, the Court noted that
"DOCCS is solely responsible for the safety and security of inmates in general, and, as relevant here, while they are in transit between correctional facilities (see Correction Law §§ 23, 112). Consistent with this responsibility, DOCCS may restrain inmates during transit (see 7 NYCRR 250.2[h]). For its part, . . . [the bus company] had no authority to affect or otherwise usurp DOCCS's obligation in this regard (see Correction Law §120)." Blake v First Transit Transp. Service, 126 AD3d at 1055.
It should also be borne in mind that the duty to defend is broader than any ultimate indemnification obligation. As discussed in Gutierrez v State of New York, UID No. 2006-029-605 (Ct Cl, Mignano, J., Dec. 19, 2006):
"[I]t is basic that the 'obligation of [an] insurance company to defend its insured, . . . is separate and distinct' (Spoor-Lasher Co. v Aetna Casualty and Surety Co., supra, 39 NY2d 875, 876) and an insurer seeking to avoid its obligation under a contract of insurance bears the 'heavy burden' of demonstrating 'as a matter of law that there is no possible factual or legal basis on which the insurer might eventually be held to indemnify the insured' (City of Johnstown, New York v Bankers Standard Ins. Co., 877 F.2d 1146 [2d Cir 1989]). That the facts before the court are insufficient to even evaluate the relative fault, if any, of the parties and thus address any potential claim for indemnification is irrelevant. 'The duty to defend is broader than the underlying potential insurance company liability' (Tishman Interiors Corp. of New York v Fireman's Fund Ins. Co., 236 AD2d 385, 386 [2d Dept 1997]) and such duty is triggered where 'facts alleged in the complaint fall within the scope of coverage intended by the parties at the time the contract was made' (New Hampshire Ins. Co. v Jefferson Ins. Co., 213 AD2d 325, 326-327 [1st Dept 1995]), regardless of the fact that any determination as to the liability of any insurer cannot be determined until after trial of the underlying action (Munzer v St. Paul Fire and Marine Ins. Co., 145 AD2d 193 [3d Dept 1989]). While only the application of law to proven facts, as reflected in a judgment, can provide the basis to determine issues of indemnification, it is the unproven allegations of the pleadings that determine the boundaries of an insurer's duty to defend.
The obligation of an insurer to provide a defense to its insured is a creature of contract, not of law (see e.g. Freedman v Glens Falls Ins. Co., 27 NY2d 364, 367 [1971]: 'the contractual obligation to defend is dependent upon the coverage of the policy'). Indeed, the basis for the principle that the obligation to provide a defense is broader than the obligation to indemnify is the recognition that an 'insured's right to representation and the insurer's correlative duty to defend suits, however groundless, false or fraudulent, are in a sense "litigation insurance" expressly provided by the insurance contract' (Servidone Construction Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 423-424 [1985]; see also Goldberg v Lumber Mutual Casualty Ins. Co. of N.Y., 297 NY 148 [1948]). Cases holding that the obligation to provide a defense is broader than the obligation to indemnify all start from the proposition that the insurance contract specifically articulated such an obligation: 'when a policy represents that it will provide the insured with a defense, we have said that it actually constitutes "litigation insurance" in addition to liability coverage' (BP Air Conditioning Corp. v One Beacon Ins. Group, 33 AD3d 116, 120 [1st Dept 2006]). Absent a contractual provision providing for defense of an action by an insurer, no such duty exists." (emphasis added).
Based on the foregoing, the State's current motion is in all respects denied without prejudice.
January 18, 2017
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims