[143 N.Y.S.2d 328] Martin A. Crean and Robert J. Sykes, New York City, of counsel to Jacob K. Javits, Atty. Gen., of the State of New York for appellant.
Bernard Katzen, William H. Stieglitz, Harry Schechter, and Raymond C. Green, New York City, for the proposed additional party-respondent.
Berg A. Boghassian, Brooklyn, and I. Sidney Worthman, New York City, for claimant-respondent.
Before FOSTER, P. J., and BERGAN, COON, IMRIE and ZELLER, JJ.
The issue to be decided herein is whether the State of New York is entitled to bring in an additional party against whom the State may seek judgment over in the event the State is held liable in a claim pending against it in the Court of Claims.
The State of New York entered into a contract with Lachow Demolition Corporation to wreck certain buildings in the County of Bronx. The corporation employed the claimant, Andrey N. Horoch, to assist in the work and, while doing so, an explosion occurred which injured him. Alleging that the State failed to provide adequate supervision over the wrecking operation and permitted a hazardous condition to exist on the job, claimant filed his claim with the Court of Claims to recover for his injuries. Thereafter, the State, by motion, sought an order from the Court of Claims authorizing it to bring in the corporate employer in order to assert a claim for indemnification against the employer on two grounds; first, at common law arising out of active and passive negligence, and secondly, under the terms of a 'hold harmless' clause allegedly contained in the contract between the State and the corporate employer. [143 N.Y.S.2d 329] The motion, opposed by claimant and the corporate employer, was denied.
If this were an action pending in a court of general jurisdiction, there could be no question of the State's right to implead the corporate employer. Civil Practice Act, § 193-a; Johnson v. Endicott Johnson Corp., 278 A.D. 626, 101 N.Y.S.2d 922; Robinson v. Binghamton Construction Co., 277 A.D. 468, 100 N.Y.S.2d 900. However, the Court of Claims has decided, and we agree, that the limited jurisdiction of the Court of Claims prevents impleading the corporate employer and, in effect, making it a 'third-party defendant' against whom the State may assert a claim.
The State, as sovereign, was immune from suit at common law. But, from time to time, the State of New York, through its Legislature, acknowledged that it should assume as legal obligations certain moral obligations for which private persons would have to respond to others in damages. Finally, there came a time when the State waived its sovereign immunity. (For
a full exposition of the historical evolvement of waiver of immunity by the State of New York see Davison, Claims Against the State of New York, Part I.) However, the State created a special tribunal of limited jurisdiction, presently called the Court of Claims, to determine its liability.
The Court of Claims uses the same rules of evidence and substantive law, Court of Claims Act, § 8, and much of the procedure, § 9, subd. 9, followed in the Supreme Court, but claimants appearing before it are not granted rights equal to those guaranteed to parties in a court of general jurisdiction. For example, the Court of Claims Act requires the liability of the State to be determined solely by a court sitting without a jury. Court of Claims Act, § 12, subd. 3. The limitations and restrictions imposed do not actually deprive a claimant of any rights, because the State, in allowing itself to be sued, extended a privilege which it could qualify as it saw fit. Thus, the claimant's status here is one based upon a conditional privilege, as distinguished from that of the corporate employer, which has guaranteed to it rights which are beyond the encroachment of the State in its claim against the corporate employer.
The Constitution of the State of New York delineates those over whom the Court of Claims may exercise jurisdiction. Section 23 of Article VI reads, in part, 'The court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide.' The Legislature, in enacting the Court of Claims Act, could not and did not enlarge upon the class of persons over whom the Court of Claims could assert jurisdiction. Section 9 of the Court of Claims Act, authorizes claims against the State, subd. 2, counterclaims by the State against the claimant, subd. 3, and allows the Court 'To order the interpleader of [143 N.Y.S.2d 330] other parties known or unknown whenever necessary for a complete determination of the claim or counterclaim.' subd. 6.
Subdivision 6 does not authorize the State to implead or bring in a third party against whom it may assert a claim over. The remedies of impleader and interpleader are different. Interpleader is the procedure by which one who may be exposed to multiple liability may require adverse claimants to litigate their claims in one action or proceeding. Civil Practice Act, § 285. In the practice of impleader there are no adverse claims against the ...