Claim No. 54620; Claim No. 54621 | New York Court of Claims | Jan 28, 1974
This is a motion for an order consolidating these claims and permitting the defendant to file and serve a counterclaim against the claimant, James F. Tierney, Claim No. 54621, for indemnification if the trial court determines that both the defendant and Mr. Tierney were negligent and that such negligence was the proximate cause of the alleged damages. The claims arose out of an automobile accident which occurred on April 26, 1971. Mr. Tierney operated one of the vehicles involved in the accident and his wife, Marion Tierney, was a passenger in said vehicle. Mrs. Tierney died on July 30, 1971. On January 6,1972, Mr. Tierney, as administrator of his wife’s estate, brought Claim No. 54620 for monetary damages allegedly resulting from her personal injuries, pain and suffering and wrongful death. On the same date, he brought Claim No. 54621 for monetary damages allegedly flowing from the injuries he received in the accident. Both claims detailed identical allegations of negligence on the part of the defendant in respect to the design, construction and/or maintenance of the highway.
Of course, the claims should be, and undoubtedly will be, joined for trial purposes. However, that is not the purpose of this motion. Paragraph 9 and the ad damnum clause in the proposed counterclaim succinctly and clearly demonstrate such purpose.
“ 9. If claimant James F. "Tierney, as Administrator of the Estate of Marion Tierney recovers against the State of New York in claim number 54620, then because of the negligence of James F. Tierney individually was sole, active, primary and paramount, and the negligence of the State of New York, if any, which is denied, was merely passive and secondary, the liability of the iState of New York in claim number 54620, if any, which is denied, should be apportioned in accordance with the relative degree of negligence of the State of New York and of James F. Tierney, individually.
‘ ‘ wherefore, defendant State of New York demands judgment dismissing the above-captioned claims number 54620 and number 54621, and, in the alternative, judgment over against claimant James F. Tierney, individually for any amount recovered by claimant James F. Tierney, as Administrator of
The reason for the Bartlett (40 A D 2d 267) appellate decision on this point was primarily founded on the denial of claimant’s
“ In our opinion the papers presented by appellant at Special Term sufficiently establish that the issue of contributory negligence of plaintiff’s intestate was fully litigated and decided upon the merits against plaintiff in her prior action against the State of New York, which action arose out of the same accident as the present action against appellant. Defendant has sustained its burden of proof * * * and has ‘ adequately established ’ * * * that judgment was rendered on the merits * * * by ‘ clear proof that such adjudication has been made ’ * * * The prior judgment is a complete defense and precludes prosecution of the cause of action herein (CPLR 3211, subd. [a], par. 5; Israel v. Wood Dolson Co., 1 N Y 2d 116; Friedman v. Park Lane Motors, 18 A D 2d 262.) ” (See, also, Planty v. Potter-De Witt Corp., 27 A D 2d 401; Chaffee v. Lawrence, 282 A.D. 875" court="N.Y. App. Div." date_filed="1953-10-05" href="https://app.midpage.ai/document/chaffee-v-lawrence-5396001?utm_source=webapp" opinion_id="5396001">282 App. Div. 875; Jones v. Young, 257 A.D. 563" court="N.Y. App. Div." date_filed="1939-07-11" href="https://app.midpage.ai/document/jones-v-young-5359079?utm_source=webapp" opinion_id="5359079">257 App. Div. 563.) Thus, the only question to be determined is that of apportionment. How is that to be accomplished? Shall the parties in the Supreme Court action read the record and the Court of Claims’ decision to the jury; or, shall all the witnesses be recalled and examined; or, shall the litigants in the Supreme Court waive their rights to a jury trial and submit the record and the Court of Claims’ decision to the Supreme Court Judge for his examination, assessment, and apportionment. It most respectfully seems to us that not only would a more equitable and logical result be obtained if the Trial Judge, even one sitting on the Court of Claims, who has observed the witnesses and who has finally resolved, at least at the trial level, the questions of liability and monetary damage, determine the apportionment factor; but also that a more practical and economic result would be obtained from a judicial manpower and jury calendar congestion point of reference.
Motion denied.