New York State Court of Claims

New York State Court of Claims

Primus Automotive Financial Services v.THE STATE OF NEW YORK, #2000-015-013, Claim No. 99569, Motion No. M-61064


Synopsis


Factual allegations in affidavits offered by a claimant in support of a motion will be accepted as true when not contested by the defendant.

Case Information

UID:
2000-015-013
Claimant(s):
PRIMUS AUTOMOTIVE FINANCIAL SERVICES, INC.
Claimant short name:
Primus Automotive Financial Services
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99569
Motion number(s):
M-61064
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Wilson, Elser, Moskowitz, Edelman & Dicker, LLPBy: Katherine Zalantis, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esquire, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 4, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion of the claimant for an order pursuant to CPLR 3212 and 3211 (b) dismissing the State's affirmative defenses and awarding it summary judgment is granted to the extent of awarding claimant partial summary judgment upon the liability issue and directing an immediate trial of the damages issue (CPLR 3212 [c]) to commence upon a date to be assigned. This claim was filed on December 30, 1998 and alleges that the claimant is the assignee of a retail installment contract executed by Michael Adderly and Michele Harris on February 24, 1995 to finance the purchase of a 1995 Honda Accord. The contract granted claimant a security interest in the vehicle which claimant protected by filing a Notice of Recorded Lien with the New York State Department of Motor Vehicles (DMV). The contract obligated Mr. Adderly and Ms. Harris to make sixty monthly payments of $505.66 commencing on March 26, 1995. Payments were made under the contract until July 26, 1998 when the debtors defaulted by failing to pay the monthly installment payment then due and each and every payment due thereafter. The unpaid balance due at the time of default was $9,641.96 and the terms of the contract entitled claimant to immediate possession. On October 26, 1998, an employee of the Title Services Unit of DMV wrote to claimant concerning the 1995 Honda as follows:
Dear Lienholder:

We have erroneously issued a Certificate of Title for the above listed vehicle and released your lien.

Our records now show this vehicle has been transferred to a new owner. Unfortunately due to the transfer of ownership a corrected title showing your lien can not be issued. We are unable to rectify our error, you will need to pursue this matter as you deem appropriate.
The claim alleges that DMV negligently issued a Certificate of Title for the vehicle which failed to reflect claimant's lien thus entitling claimant to recover the value of the vehicle or the value of its lien, whichever is less. By this motion, claimant seeks an order dismissing the affirmative defenses for lack of merit and summary judgment in its favor upon the issues of liability and damages. Defense counsel opposes the motion arguing that claimant has failed to establish that it has sustained a loss in that it has not proven an inability to recover the amount which remains due under the contract from Michele Harris or Michael Adderly and that proof of damages is deficient in that there is nothing in the motion record establishing the present value of the vehicle.

Although summary judgment in a negligence action is rare, it will be granted upon the liability issue when the defendant's own admissions establish negligent conduct and the motion record establishes as a matter of law that the injured party is free of contributory fault (Andre v Pomeroy, 35 NY2d 361). Facts asserted in the affidavits offered by claimant in support of the motion will be deemed true when not contested by the defendant's papers in opposition (Kuehne & Nagel v Baiden, 36 NY2d 539; Fleet Natl. Bank v Harley, 153 AD2d 1005; Kent v Dutton, 122 AD2d 558; Cucalon v State of New York, 103 Misc 2d 808, 811). It is settled law in this State that a claimant will be permitted to recover the lesser of either the balance due under the contract or the market value of the vehicle (General Motors Acceptance Corp. v Fairway Dodge Sales, 80 AD2d 740) when through the ministerial neglect of DMV an incorrect certificate of title is issued for a motor vehicle permitting the vehicle to be sold to a bona fide purchaser (Ford Motor Credit Co. v State of New York, 133 AD2d 980). Under such circumstances, the State will be responsible in tort for the damages sustained by the lien holder due to DMV's impairment of its lien regardless of any contractual redress potentially available to the lien holder as against the debtor (The Exchange Nat. Bank of Tampa v State of New York, 88 Misc 2d 444, 451, 452). However, even if summary judgment may be appropriate on the liability issue the amount of damages must await trial unless the claimant has proven by competent and sufficient evidence the value of the vehicle at the time of the loss (General Motors Acceptance Corp. v Fairway Dodge Sales, supra at 741). With the foregoing rules of law in mind, a review of the merit of the affirmative defenses set forth in the answer is appropriate.

The first affirmative defense alleges that the Court lacks jurisdiction in that no claim was served and filed and no notice of intention to file a claim was served within 90 days of accrual as required by Court of Claims Act § 10 (3). In his affidavit offered in support of the motion, Jeff Weidenbenner states upon his own knowledge, gained from a review of the books and records maintained by the claimant, that "[o]n or about October 26, 1998, the DMV negligently issued a Certificate of Title for the Vehicle which did not reflect Primus' lien". Defense counsel has not contested that factual allegation requiring that it be deemed true (Kuehne & Nagel v Baiden, supra at 539; Fleet Natl. Bank v Harley, 153 AD2d 1005, supra; Kent v Dutton, 122 AD2d 558, supra; Cucalon v State of New York, 103 Misc 2d 808, 811 supra). The use of the phrase "on or about" preceding a specific date means "approximately", "about" or "without substantial variance from" that date (Blacks Law Dictionary 1240 [4th ed 1969]) and does not "include a large number of days prior to and after such date" in determining whether a cause of action is timely under a Statute of Limitations" (Gittner-Louviere Engineering, Inc. v Superior Court of Pinal County, 565 P2d 915, 918 [Ct. Of App. Ariz., 1977]). The allegation that a claim accrued "on or about" a specific date will be deemed to refer to that specific date in determining whether a time period set forth in Court of Claims Act § 10 has been complied with when the State has conceded the truth of the allegation by not contesting it (230 Park Ave. Assocs. v State of New York, 165 Misc 2d 920, 923). Therefore, since Mr. Weidenbenner alleged that the claim accrued "[o]n or about October 26, 1998," and defense counsel conceded the truth of that allegation by not contesting it, this claim served upon the Attorney General by certified mail, return receipt requested, on December 29, 1998 and filed with the Clerk of the Court on December 30, 1998 is timely since all of the potential accrual dates took place within 90 days[1] of the service and filing of the claim (Marine Midland Bank v State of New York, 195 AD2d 871). The first affirmative defense lacks merit.

The second affirmative defense asserts that the claim fails to comply with section 11 (b) of the Court of Claims Act. That subdivision provides that the claim "shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." The claim alleges that it arose on or before October 26, 1998 in Albany, New York when DMV erroneously issued the certificate of title. The pleading asserts that the nature of the claim is to recover for the State's negligence in performing a ministerial task and the items of damage and total sum claimed are set forth in Exhibit "E" annexed to the claim. The second affirmative defense lacks merit.

The third affirmative defense alleges that the claim fails to state the date of accrual of the cause of action as required by section 11 of the Court of Claims Act. As stated above, the date of accrual, "on or before October 26, 1998", is set forth in the claim and, therefore, the third affirmative defense also lacks merit.

The fourth affirmative defense alleges that the claim fails to state a cause of action. The claim does state a cognizable cause of action pursuant to the rules of law announced by the Third Department in the case of Ford Motor Credit Co. v State of New York, 133 AD2d 980, supra.

The fifth affirmative defense alleges that the claim is defective because it is not verified. The claim filed with the Clerk of the Court is verified by claimant's counsel. Court of Claims Act § 11 (b) provides that a claim "be verified in the same manner as a complaint in an action in the supreme court". CPLR 3020 (d) (3) provides that a verification may be made by an attorney if the party is a foreign corporation or is not located in the county where the attorney has his or her office. Claimant is located in Franklin, Tennessee and thus verification by its attorney located in Westchester County is valid.

The sixth, eighth and tenth affirmative defenses allege various qualified and absolute privileges. Pursuant to the Ford Motor Credit case, ministerial acts of DMV personnel in failing to note claimant's lien on a certificate of title are not protected by any privilege, qualified or absolute.

The seventh affirmative defense asserts that the claim fails to state a cause of action pursuant to CPLR § 3017. CPLR § 3017 (a) directs the manner in which the demand for relief shall be set forth in a complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint. To the extent that CPLR § 3017 (a) is applicable in the Court of Claims, claimant has complied with its requirements through Exhibit E annexed to the claim.

The ninth affirmative defense asserts that the claim is premature and presents no case or controversy. The claim is not premature and is ripe for determination.

All of the affirmative defenses set forth in the answer lack merit and must be dismissed.

As to whether claimant is entitled to summary judgment upon the liability issue, claimant relies upon the admitted error of DMV set forth in the October 26, 1998 letter from the Title Services Unit. Defendant has not made any argument denying DMV's negligence. Claimant is entitled to summary judgment upon the liability issue. With respect to damages, the Appellate Division has established in the General Motors Acceptance case that in order to recover claimant must prove the value of the vehicle at the time of the loss by competent and sufficient evidence. The reason for that evidentiary requirement is that if the vehicle had no value at the time it was sold to the bona fide purchaser claimant would have sustained no loss through the impairment of its security interest. Claimant complains that it has no knowledge of what condition the vehicle was in at the time of transfer because "[t]he vehicle is gone thanks to the DMV" (paragraph 3 of the reply affirmation of Katherine Zalantis dated February 10, 2000). Claimant's position lacks merit as there was evidence available to it through the discovery process to establish some proof of the value of the vehicle at the time of transfer. In particular, claimant could have learned from defendant what amount of sales tax was paid by the new purchaser and by that number determined the purchase price which would have been some evidence of value (General Motors Acceptance Corp. v Fairway Dodge Sales, 80 AD2d 740, supra at 741). Furthermore, claimant could have obtained the name of the new purchaser and deposed he or she as a non-party witness with respect to the condition of the car at the time of sale. Be that as it may, those are issues to be addressed during the trial of the damages portion of this claim.



April 4, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 13, 2000;
  2. Affirmation of Katherine Zalantis dated January 13, 2000, with exhibits;
  3. Affidavit of Jeff Weidenbenner sworn to January 11, 2000, with exhibits;
  4. Affidavit in opposition of Dennis M. Acton sworn to February 1, 2000;
  5. Reply affirmation of Katherine Zalantis dated February 10, 2000, with exhibit;
  6. Claim filed on December 30, 1998.

[1]Court of Claims Act § 10 (3) requires that a negligence claim be served and filed within 90 days of accrual if a notice of intention to file a claim was not served upon the Attorney General within 90 days of accrual.