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