53 Misc. 2d 929 | New York Court of Claims | 1967
Originally there were three separate claims for personal injury and wrongful death arising out of an accident which occurred during the construction of a portion of the Cross-Bronx Expressway. These claims were filed separately under the following headings:
M. Ramos v. State of New York, M. Flynn as Adm. v. State of New York and R. M. Loustarinen as Adm. v. State of New York.
Subsequently, the parties stipulated to a consolidation and, pursuant to an order dated January 31, 1967, all the claims were consolidated for all purposes under Claim No. 39423, bearing the title and action number as first appears herein.
Thereafter, counsel for the intestates Flynn and Loustarinen moved for an order granting summary judgment, and claimant Ramos, in separate papers, moved for the same relief. The State has cross-moved in both.
The particular area of the Expressway involved was being constructed by Johnson, Drake & Piper, Inc., as general contractor under a contract entered into with the State of New York. The claimant Ramos, and the intestates Flynn and Loustarinen were carpenters employed by the general contractor. On
Although neither the Court of Claims Act nor the Rules of the Court of Claims specifically authorize the remedy of summary judgment, the Court of Claims Act does provide that “ except as otherwise provided by this act or by rules of this court or the civil practice law and rules, the practice shall be the same as in the supreme court.” (Court of Claims Act, § 9, subd. 9; CPLR 101.) It is now settled that the scope of this language is sufficient to encompass and make available the salutary remedy of summary judgment to litigants in this court. (Vern Norton, Inc. v. State of New York, 27 A D 2d 13 [3d Dept., 1966].)
The motions made on behalf of claimants rely upon the same arguments and documents. Accordingly, the court will consider them both as one combined motion which, in view of the order of consolidation, should have been the procedure followed. Claimants initially contend that the jury verdict in the Supreme Court encompassed a finding that the shoring wall of the temporary forms was negligently erected, and this finding of negligence is res judicata as against the State of New York. However, the judgment entered upon that verdict was subsequently reversed and the case dismissed. In order for claimants to rely upon the doctrine of res judicata, “there must be a judgment, as verdicts or other findings not followed by judgment are not binding”. (Rudd v. Cornell, 171 N. Y. 114, 127 [1902].)
In any event, the question of lack of a final judgment aside, the contention that the jury finding is res judicata cannot be sustained for the following reasons. Even if it were true that the collapse of the forms was due to their improper erection and maintenanace by the general contractor, this finding may not be used “ offensively against the State of New York which
In addition to the above contention regarding res judicata, claimants also press the argument on this motion that the State of New York in preparing for the construction of the Cross-Bronx Expressway, entered into a contract with the United States Government. Under the terms of this contract, the Federal Government authorized the allocation of funds for highway construction pursuant to the provisions of the Federal Highway Act Program. (U. S. Code, tit. 23.) Belying upon this statute and the contract, as well as the implementation thereof by the regulations enacted by the Department of Commerce entitled ‘ ‘ Administration of Federal Aid for Highways,” claimants argue that a duty was imposed upon the State to supervise all safety features and work practices during the construction period. They further contend that this duty Avas breached and, therefore, claimants are entitled to summary judgment as a matter of law. In support of this argument, claimants refer to section 114 of .title 23 of the United States Code. That section provides: “ The construction of any highways or portions of highways located on a Federal-aid system shall be undertaken by the respective State highway departments
With respect to the cross motions for summary judgment made on behalf of the State, the court is of the opinion that these must also be denied. The papers presented in support thereof are insufficient to allow the court at this time to state that this claim has no merit or to make a determination that no triable issues of fact remain.