New York State Court of Claims

New York State Court of Claims

PRIMUS AUTOMOTIVE v. THE STATE OF NEW YORK, #2000-015-101, Claim No. 99569, Motion No. M-62288


Note of issue struck to allow claimant to engage in discovery relative to damages arising from State's negligent failure to list claimant's lien on motor vehicle's certificate of title.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Wilson, Elser, Moskowitz, Edelman & Dicker, LLPBy: Nathan A. Haynes, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. ActonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to strike the note of issue filed in this matter on March 16, 2000 is granted. The trial on the issue of damages scheduled for November 28, 2000 is canceled. Claimant shall complete all discovery and file a new note of issue by January 15, 2001. This claim alleges that the New York State Department of Motor Vehicles negligently issued a certificate of title to a 1995 Honda which failed to include a security lien held by the claimant as an assignee of a retail installment contract executed by Michael Adderly and Michele Harris on February 24, 1995. The purchasers resold the vehicle subsequent to the issuance of the title. Claimant previously moved for summary judgment on this claim.

By decision and order dated April 4, 2000 this Court granted claimant's motion as to liability and ordered an immediate trial on the issue of damages (CPLR 3212(c)). As noted above, the trial was scheduled for November 28, 2000.

Claimant now moves for an order vacating its note of issue on the grounds that as a result of the Court's decision and order on the summary judgment motion, which determined that the proof offered by claimant on the motion was inadequate to allow a determination of damages by the Court, claimant must engage in discovery in order to obtain evidence regarding the value of the motor vehicle at the time of claimant's loss (General Motors Acceptance Corp. v Fairway Dodge Sales, 80 AD2d 740). Claimant alleges that prior to the Court's decision and order it assumed that the value of the vehicle could be established by merely presenting at trial, or on the motion, proof of the vehicle's book (NADA) value. Claimant now recognizes that additional proof of value will be required.

The defendant opposed the motion on the grounds that claimant failed herein to demonstrate good cause to strike the note of issue, that claimant was aware or should have been aware of its obligation to prove the vehicle's value as of the date of loss and that the Court should not be persuaded by claimant's financial restraint argument. Claimant argues that the relatively small amount of the lien in this claim caused it to avoid discovery as to damages until after this Court's decision (Eaton v Chahal, 146 Misc 2d 977).

Section 206.12(d) of the Uniform Rules for the Court of Claims, in relevant part, provides:
(d) Striking note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. After such period, no such motion shall be allowed except for good cause shown.
The decision on this motion clearly rests in the discretion of the Court. The Court, in the exercise of its discretion finds that under the circumstances, claimant has demonstrated good cause for striking the note of issue and for allowing additional discovery including but not limited to depositions of the subsequent purchasers of the subject vehicle for purposes of establishing its value at the time of the claimant's loss.

November 14, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

1. Notice of motion dated August 29, 2000;
  1. Affirmation in Support (Nathan A. Haynes) dated August 28, 2000 with exhibits;
  2. Affidavit in opposition (Dennis M. Acton) sworn to September 13, 2000;
  3. Affirmation in reply (Nathan A. Haynes) dated September 14, 2000.