New York State Court of Claims

New York State Court of Claims

GALLO v. THE STATE OF NEW YORK, #2000-019-539, Claim No. 99514, Motion No. M-62128


State's summary judgment motion granted based on Claimant's failure to state facts sufficient to support a cause of action for negligent misrepresentation.

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:
Defendant's attorney:
BY: Susan J. Pogoda, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 22, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") has made a motion for summary judgment pursuant to CPLR 3212.

The Court has considered the following papers in connection with this motion:
  1. "Notice of Claim", filed December 18, 1998.
  2. Notice of Motion No. M-62128, dated August 1, 2000 and filed August 3, 2000.
  3. Affirmation of Anne Pavlides, AAG, in support of motion, dated August 1, 2000, with attached exhibits.
  4. Affirmation of Gregory J. Gallo, Esq., in opposition to motion, dated August 22, 2000, and filed August 23, 2000.
  5. Reply Affirmation of Susan J. Pogoda, AAG, in support of motion, dated September 25, 2000 and filed September 28, 2000, with attached exhibits.

This Claim arose on October 3, 1998 when Claimant was arrested by New York City Police Officers for driving with an allegedly suspended drivers license.[1] Claimant was detained overnight and released from custody after his arraignment on October 4, 1998. Thereafter, on October 6, 1998, Claimant went to the State Department of Motor Vehicle (hereinafter "DMV") office in College Point, New York and discovered from a clerk that his "[l]icense was suspended in error based on a ministerial failure on the part of the department to input the information supplied by representatives to the claimant." (Notice of Claim, ¶ Seventh).

The State advances two grounds on which it contends this claim fails to state a cause of action, namely: (1) the facts do not support a claim for negligent misrepresentation, and (2) the State's actions through the DMV are completely sovereign in nature. It is well-settled that on a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

Negligent Misrepresentation

The State argues that the cause of action designated as negligence is really one for negligent misrepresentation. As such, the State argues, the negligent misrepresentation cause of action should be dismissed because the essential element of reliance is missing. The Court agrees. In order to properly assert a negligent misrepresentation cause of action, Claimant and no one else, must have relied upon the misinformation to his detriment. (6B Warren, Negligence in the New York Courts [4th ed], Misrepresentation of Facts, § 17.03[1][b]). Here, as in many similar cases, the reliance on the misinformation was by an agency (e.g. police) and not the Claimant as required. (Williams v State of New York, 90 AD2d 861 [trooper, not plaintiff, relied on erroneous DMV records; claim dismissed]; Johnson v State of New York, 166 Misc 2d 333 [deputy sheriff, not claimant, relied on inaccurate DMV records; claim dismissed]; Collins v Brown, 129 AD2d 902 [police, not plaintiff, relied on misidentification by witness/defendant]). As such, the State has met its burden of establishing the right to judgment as a matter of law and the burden shifts to Claimant to come forward as "[t]he party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

In opposition, Claimant does not dispute that his claim for negligence is really one for negligent misrepresentation. (Affirmation of Gregory J. Gallo, Esq., ¶ 8). Rather, Claimant argues his claim is distinguishable from those cited by the State because it was drafted in terms of the Claimant's reliance on DMV's silence and DMV's failure to notify him of its mistake and of his license suspension, instead of the police department's reliance on the misinformation supplied by DMV.[2]

Claimant's argument that a cause of action lies in negligence or negligent misrepresentation because the DMV "failed to provide him with notification of an impending suspension of his driver license, or...notify him of such fact" strains credibility. (Affirmation of Gregory J. Gallo, Esq., ¶ 9). First, Claimant does not cite any case law in support of the existence of a cause of action premised upon DMV's "failure to notify" or DMV's "position that it does not have to notify drivers [of suspensions or revocations]". (Affirmation of Gregory J. Gallo, Esq., ¶ 8). In any event, the State has submitted a copy of a "Notice of Impending Driver License Suspension & Conviction" which was apparently mailed to Claimant on August 18, 1998 as a result of his failure to appear on his August 10, 1998 return date. (Reply Affirmation of Susan J. Pogoda, AAG, ¶ 6 & Exhibit C). As such, in this Court's view, Claimant has failed to establish the existence of a claim for negligence or negligent misrepresentation. Consequently, this Claim must be dismissed for failure to state a cause of action.


Parenthetically, the State also argued it was entitled to summary judgment on the theory that these acts (by the DMV) are completely sovereign in nature citing, among others, Williams v State of New York, supra, 90 AD2d 861. However, the portion of Williams finding immunity in situations involving ministerial acts such as these has been overruled. (Ford Motor Credit Co. v State of New York, 133 AD2d 980; Johnson v State of New York, supra, 166 Misc 2d 333, 340; Bell v State of New York, 140 Misc 2d 778, affd 154 AD2d 958, lv denied 75 NY2d 856).


Finally, Claimant argues the summary judgment motion should be denied based upon the State's failure to comply with discovery demands. The State disputes this representation. In either event, a request for further discovery may be rejected when, as here, there is no realistic expectation of uncovering useful information to the contrary. (Yunk Chul Jee v B.P. Cleaners, 215 AD2d 651, 652). Claimant is vague as to how such discovery would have served to assist him in opposing this motion. Claimant's request for an opportunity to conduct additional discovery is denied.

Accordingly, in light of the foregoing, it is ORDERED that the State's motion for summary judgment, Motion No. M-62128, is GRANTED and Claim No. 99514 is DISMISSED.

November 22, 2000
Binghamton, New York

Judge of the Court of Claims

On July 4, 1998, Claimant was involved in a car accident and failed to produce an insurance card. (Reply Affirmation of Susan J. Pogoda, AAG, ¶ 5).
Counsel sets out his argument in different ways including: "[o]ur argument is that the claimant relied on DMV'S misrepresentation, whereupon by its silence concerning the suspension of the claimant's license, DMV misrepresented the actual facts to the claimant, harming the latter." (Affirmation in Opposition, ¶ 8).