New York State Court of Claims

New York State Court of Claims

LAROCHEL v. THE STATE OF NEW YORK, #2001-014-515, , Motion No. M-62390


Application for 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:
Michael J. Spevack, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 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 Exhibit annexed.

The claimant seeks permission to file a late claim, alleging that the negligence of the defendant in incorrectly recording that his driver's license was suspended resulted in his arrest by local police officials.

Although it appears that a timely Notice of Intention was served upon the Attorney General, a claim was not served or filed within two years after the claim's accrual. The delay in filing a claim is not excusable; it appears from his submission that his counsel had difficulty locating the claimant to sign the claim.

The defendant does not dispute that a timely Notice of Intention was served; it therefore appears that the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and that the failure to file a timely claim has not resulted in substantial prejudice.

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 arrested 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 20, 2001
New York, New York
Judge of the Court of Claims