Claimant's motion for summary judgment pursuant to CPLR 3212 seeking a money
judgment in the amount of $555.00 against the defendant is denied and the
defendant's cross-motion to dismiss the claim is granted. The instant claim
filed March 27, 2001 arose out of the claimant's dissatisfaction with motor
vehicle repairs performed upon his vehicle during the period August 9-13, 1999
by Motor Vehicle Repair Shop #3140217, registered by the State of New York
Department of Motor Vehicles (DMV) pursuant to article 12-A of the Vehicle and
Traffic Law. Claimant apparently reported his dissatisfaction with the repairs
to DMV. The department, after investigation of the complaint, issued an
official warning letter to the facility and advised the claimant of that action
by letter dated January 12, 2000. The letter concluded with the words "[i]f you
have new or additional information which would affect the disposition of this
case, you may submit it in writing, along with the facility number and case
number printed above." The letter was signed by Henry Ashline, Regional
Director of DMV, Division of Vehicle Safety Services. It appears that the
claimant failed to realize that the warning letter issued by DMV to the repair
facility was the end result of DMV's investigation of claimant's complaint
rather than the initiation of a formal license suspension or revocation
By notice of motion and an attached unsworn document entitled "Motion for
Summary Judgment" dated April 8, 2001 claimant now moves for judgment on the
claim asserting liability premised upon the inaction of the DMV with respect to
The defendant has cross-moved to dismiss the claim on the ground, inter
alia, that this Court lacks jurisdiction since the claim was untimely
filed. The defendant argues that if the cross-motion to dismiss is denied
claimant's summary judgment motion should be denied as premature since the claim
is in its infancy and no discovery has yet occurred.
Claimant's motion is procedurally defective since it lacks a supporting
, Civil Practice Law and Rules, Rule 3212 (b)) and fails to
specify the nature of the relief sought on the motion. "In order to award
summary judgment, a court must find that the movant has established its claim
sufficiently to warrant the court as a matter of law to direct judgment in its
favor (CPLR 3212[b]), that there are no material triable issues of fact, and
that the proof is tendered in admissible form (see
, e.g., Zuckerman v
City of New York
, 49 NY2d 557; Naughton v Mueller
, 203 AD2d 341)"
(Brookhaven, Town of v FPD Tavern Corp.
, 226 AD2d 625, 626). Claimant's
proof on this motion fails to meet this standard even if the Court were to
consider his verified claim as an affidavit in support of the
, CPLR § 105 [u]).
Judgment as a matter of law in the claimant's favor must be denied.
Defendant on the cross- motion has alleged that this Court lacks jurisdiction
as the claimant did not timely file the claim and the claim seeks equitable
relief only available through an article 78 proceeding in Supreme Court pursuant
to CPLR § 7801, et seq.
The claim on its face alleges that it accrued on the 8th day of March 2001
which, interestingly, is the date the claim was verified. There are no factual
allegations contained in the claim which tend to establish that the State of New
York, its employees, officers or agents engaged in any conduct on the alleged
accrual date which might form the basis of liability. An examination of
paragraph "2" of the claim indicates that claimant's alleged dissatisfaction
with the repair facility occurred between August 9, 1999 and August 13, 1999,
dates considerably removed from the alleged accrual date of March 8, 2001. That
same paragraph further indicates that claimant was notified of the department's
disposition of his complaint, i.e., the issuance of a warning letter to the
facility, by letter dated January 12, 2000.
Claimant apparently misinterpreted the January 12, 2000 letter as suggesting
that further action would be taken against the facility by DMV and surmised that
he might reasonably expect a refund of his payment for the alleged
unsatisfactory repair work. He now apparently seeks to recover the amount paid
for the repairs from DMV on the ground that it is somehow liable for the actions
or inactions of the licensed repair facility. Claimant has cited no statutory
or case law authority supporting the imposition of liability against the State
on that basis. Moreover, except for an oblique reference to DMV's alleged
failure "to issue a subpoena for the information required to complete the
invoice as prescribed by law" contained in paragraph "2" of the verified claim
it is silent as to the nature of the claim or the alleged basis of liability.
Even if the Court were to liberally interpret the above quoted language as
describing some otherwise unspecified obligation on the part of DMV to issue a
subpoena it cannot be found that the State's failure to do so would subject the
State to liability for the cost of claimant's repairs.
The defendant's motion to dismiss the claim as untimely is granted. In
addition, the claim fails to state a cause of action against the State of New
York (see, Longariello v Getty, 207 AD2d 870) requiring
Subsequent to the filing of the instant motion for summary judgment claimant
filed a "First Amended Pleading" on April 25, 2001. Since, however, a
jurisdictionally defective claim may not be amended to cure the jurisdictional
defects the Court, on its own motion, hereby dismisses the first amended
pleading as well as the original claim (see, Grande v State of New
York, 160 Misc 2d 383).