Appellants instituted this action pursuant to section 93 of the Workers' Compensation Law to recover unpaid premiums on a canceled insurance policy. Respondent answered and interposed a counterclaim for actual and punitive damages for the wrongful cancellation of a policy issued to G.M. Mathews Sons Ltd., an unrelated corporation controlled by respondent's principals. Appellants moved for summary judgment dismissing the counterclaim pursuant to CPLR 3212, asserting, inter alia, that the court lacked subject matter jurisdiction. The motion was denied and appellants did not seek reargument or take an appeal. Thereafter, they moved to dismiss the counterclaim pursuant to CPLR 3211 (a) (2). The court rejected appellants' jurisdictional challenge citing Commissioners of State Ins. Fund v Low ( 3 N.Y.2d 590) and on the ground that the court's prior decision, from which no appeal had been taken, was the law of the case.
The State Insurance Fund is a State agency which the Legislature vested with certain sovereign powers and "the mantle of the State's sovereign immunities" (Methodist Hosp. v State Ins. Fund, 102 A.D.2d 367, 372 [1st Dept 1984], affd 64 N.Y.2d 365). As such, it is immune from suit in any forum other than the Court of Claims (see, Cardinal v State of New York, 304 N.Y. 400, 405; Skakandy v State of New York, 274 App. Div. 153, 155, affd 298 N.Y. 886). In Low (supra, at 595), the Court of Appeals found that the State Insurance Fund is, for the purposes of instituting litigation, "considered to be an entity separate from the State itself" and therefore is not bound under doctrines of collateral estoppel and res judicata by judgments rendered against the State where the Insurance Fund was not a party to the action. However, this decision should not be so broadly read as to strip the Fund of all aspects of its immunity as a State agency (see, Solomon v Kennedy, 38 Misc.2d 1090, 1092). The Fund does function as a separate insurance business which is not represented by the Attorney-General and which may independently bring suit, and in this capacity it has only limited immunity (Matter of Carney v Newburgh Park Motors, 84 A.D.2d 599, 600 ["While laches cannot generally be imputed to the sovereignty, the defense is available in cases where the government acts in its private or proprietary capacity"]). Nevertheless, it retains the sovereign's immunity from suit in any forum other than the Court of Claims.
Concur — Sandler, Carro, Asch and Rosenberger, JJ.
Murphy, P.J., dissents and would affirm for the reasons stated by Alvin Klein, J., at Special Term.