74 Misc. 2d 611 | N.Y. Sup. Ct. | 1973
Motion by third-party defendant, Pilgrim State Hospital (Hospital), to dismiss the third-party complaint on the ground the Hospital is an instrumentality of the State and any action against it must be brought in the Court of Claims. Third-party plaintiffs contend that this court should accept jurisdiction under the decision in Dole v. Dow Chem. Co. (30 N Y 2d 143), which permits apportionment of damages between joint tort-feasors in one action.
The facts, briefly, are as follows: The prime action is for wrongful death. Plaintiff’s decedent, who allegedly was a mental patient in the Pilgrim State Hospital, wandered off the hospital grounds and onto a highway, where he was struck by the prime defendants’ vehicle. The defendants therein, Paul and Carolee Degl, instituted a third-party action against the Hospital, alleging negligence and seeking contribution or indemnity from the Hospital under the Dole case in the event they are found liable.
The issue presented herein is whether this court has jurisdiction of an action against the State, or must the action be brought in the Court of Claims.
In the opinion of the court, this action must be brought in the Court of Claims. Coneededly, the third-party defendant Hospital is an instrumentality of the State. As such, any action against it must be brought in the Court of Claims. The Dole case did not change this jurisdictional requirement. In Breen v. Mortgage Comm. of State of N. Y. (285 N. Y. 425, 429), the Court of Appeals with respect to actions against the State,
However, the Court of Appeals in Dole recognized the fact that an apportionment of responsibility could be pursued in a separate action.
Accordingly, the motion of the third-party defendant to dismiss the third-party complaint is granted, without prejudice, however, to any action the third-party plaintiffs may be advised to take against the Hospital in the Court of Claims at the appropriate time.