New York State Court of Claims

New York State Court of Claims

KEARNEY v. THE STATE OF NEW YORK, #2001-014-510, , Motion No. M-61780


Application for permission to file a late claim alleging negligent misrepresentation is denied.

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):

S. Michael Nadel
Claimant's attorney:
James I. Meyerson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant's application for permission to file a late claim: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition and Exhibits annexed; Reply Affirmation and exhibits annexed; Claimant's Memorandum of Law; Defendant's Memorandum of Law.

The claimant seeks permission to file a late claim, alleging that the negligence of the defendant in incorrectly recording, in 1990, that the claimant had been convicted of a misdemeanor, resulted in his arrest and detention by Federal customs officials for 16 days ten years later, until he was able to establish that, in fact, he had been convicted of a violation, whereupon he was released.

The delay in filing a claim is not excusable; it appears that claimant commenced actions against the City of New York, based on an incorrect belief that it was responsible for the acts of New York State court personnel.

Contrary to argument of counsel for the claimant, which has been considered, the proposed claim alleges a cause of action for negligent misrepresentation. As such, on the facts alleged, the proposed claim does not appear to be meritorious. In Williams v State of New York, 90 AD2d 861, the Court dismissed a claim in which the claimant had been arrested as a result of erroneous information provided by the Department of Motor Vehicles that his license was suspended. Two grounds for its decision were provided. First, the Court held that "the State is not liable for any act which is completely sovereign in nature and completely foreign to any activity which could be carried on by a private person." Id, at 862. Second, the Court held that "the negligence cause of action, in reality, is one for negligent misrepresentation although it is not denominated as such by claimant . . . . One of the necessary elements in establishing such a cause of action is that claimant has relied upon information given to him to his detriment . . . . In the matter at bar, claimant did not rely upon the State's misrepresentation, the deputy sheriff did." Id.

As noted by Judge Bell of this Court in Johnson v State of New York, 166 Misc 2d 333, the first ground in Williams (sovereign immunity) has been overruled in Ford Motor Credit Co. v State of New York, 133 AD2d 980 (see, Boland v State of New York, 161 Misc 2d 1019; Bell v State of New York, 140 Misc 2d 778, aff'd 154 AD2d 958, lv denied 75 NY2d 856), but the second ground (negligent misrepresentation) remains the law, having been reaffirmed in Collins v Brown, 129 AD2d 902, 904. See, also, King v Crossland Savings Bank, 111 F3d 251, 255, in which the United States Court of Appeals, Second Circuit, relied upon Judge Bell's analysis of the law with respect to negligent misrepresentation.

The facts upon which the claimant bases his proposed claim are essentially indistinguishable from those in Johnson, supra, in which the claimant was detained and arrested upon entering the country, based upon an incorrect report by the State Department of Motor Vehicles that his license was suspended. There is no appearance of merit to the claim.

It is not clear from the submissions whether the claimant has any other available remedy.

In accordance with the foregoing, the application is denied, based on the fact that the claim does not appear meritorious, which weighs heavily against granting permission to file a late claim. Klingler v State of New York, 213 AD2d 378; Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729.

February 14, 2001
New York, New York

Judge of the Court of Claims