New York State Court of Claims

New York State Court of Claims

ECKERT v. THE STATE OF NEW YORK, #2002-015-214, Claim No. NONE, Motion No. M-64183


Synopsis


Late claim application denied due to lack of merit to claim seeking to recover money damages from State for his arrest by Town of Cheektowaga Police based on information from DMV that claimant's license was suspended. Claimant failed to allege elements necessary for negligent misrepresentation.

Case Information

UID:
2002-015-214
Claimant(s):
TIMOTHY ECKERT
Claimant short name:
ECKERT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64183
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Robert B. Druar, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Richard B. Friedfertig, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The claimant seeks to file a claim arising out of his arrest and detention by members of the Town of Cheektowaga Police Department on May 5, 2001 allegedly caused by the dissemination of false information regarding the status of claimant's driver's license by the Commissioner of Motor Vehicles and certain unnamed employees of the Department of Motor Vehicles. Specifically claimant alleges in the proposed claim that such false information included the alleged suspension of claimant's driving privileges based upon claimant's failure to maintain automobile liability insurance as required by the Vehicle and Traffic Law. The proposed claim asserts that claimant was caused to suffer a loss of liberty, humiliation and emotional distress for which he seeks $1,000,000.00 in compensatory damages.

In his affidavit in support of the motion for late claim relief claimant's attorney alleges that he was retained near the eve of the ninety day filing deadline to commence separate claims against the State and the Town of Cheektowaga. He alleges that he prepared the appropriate documents and that a claim was served upon the Office of the Attorney General at 107 Delaware Avenue, Buffalo, New York on August 2, 2001. He further asserts that he left instructions with his office regarding the filing of the claim with the Court but that such filing did not occur. He maintains that the delay in filing the claim is excusable and that the State had timely notice of the claim based upon the aforementioned service of the claim on the Office of the Attorney General as demonstrated by the service of the State's answer. He also argues that the State had ample opportunity to investigate the claim, that the claim is meritorious and that claimant has no other remedy available.
In opposition to the motion Assistant Attorney General Richard Friedfertig submitted an affidavit which incorporated by reference the notice of claim filed by claimant against the Town of Cheektowaga in which the following alleged facts attendant to claimant's arrest and detention were set forth: 4. On May 5, 2001 Claimant went to the Cheektowaga Police Headquarters to report that his wallet had been lost.
5. Incident to that report an employee of the Town of Cheektowaga Police Department told Claimant that the Department of Motor Vehicles computer to which they had access indicated that Claimant's driving privilege had been suspended for a prior insurance lapse.

6. Claimant informed the said employee of a Department of Motor Vehicles error for which he had an explanatory letter from the Department of Motor Vehicles clarifying that his driving privilege was erroneously suspended.

7. Claimant further informed the said employee and the employee acknowledged awareness that the Department of Motor Vehicles was erroneously reporting such information about motorists.

8. Prior to Claimant leaving the Cheektowaga Police Station and in the course of his exchange with the employee, he was told that he would be arrested were he to drive from the Cheektowaga Police Station.

9. Claimant told the said employee that he had proof of the error by way of a letter from the Department of Motor Vehicles and he and the employee continued the business of completing the lost wallet report.

10. Claimant then drove home to retrieve his letter from the Department of Motor Vehicles and drove on to conduct other business.

11. Claimant was then pulled over by three marked Cheektowaga police cars, arrested, booked and held in lieu of bail for approximately three hours.
In response to this application for late claim relief the State argues that the proposed claim lacks merit since claimant has not alleged that the defendant directed the members of the Cheektowaga Police Department to arrest the claimant, the State is not responsible for directing or controlling the actions of the Town of Cheektowaga Police Department and that the claimant has failed to establish the elements of a viable cause of action for negligent misrepresentation, citing Williams v State of New York, 90 AD2d 861; Johnson v State of New York, 166 Misc 2d 333; Collins v Brown, 129 AD2d 902. The State also argues that the excuse offered for the claimant's failure to timely file the claim with the Court is not reasonable. The defendant requests that claimant's application for late claim relief be denied.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim apparently asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

With regard to the excuse advanced for claimant's failure to timely file the claim within 90 days of its accrual, law office failure does not constitute a reasonable excuse for the late filing of a claim (Sessa v State of New York, 88 Misc 2d 454, 459, affd 63 AD2d 334, affd 47 NY2d 976; Nyberg v State of New York, 154 Misc 2d 199). The lack of an acceptable excuse is only one of the factors to be considered and although it weighs against claimant it does not constitute a bar to the relief requested (Carvalho, Matter of v State of New York, 176 AD2d 317).

Defense counsel has not specifically addressed the closely related issues of notice, opportunity to investigate and substantial prejudice. Claimant's attorney has alleged service of the claim upon Assistant Attorney General John C. Luzier at 107 Delaware Avenue, Buffalo, New York on August 2, 2001 which was within 90 days of the claim's accrual. The Court finds that the timely service of the claim upon the Attorney General afforded the State notice and an opportunity to investigate the claim and that the State was not prejudiced by the failure to timely file. The issues of notice, opportunity to investigate and a lack of substantial prejudice therefore weigh in favor of the application.

Perhaps the most significant of the statutory factors is whether the claim appears meritorious since it has been held that to permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254). In its opposition to the motion the State has argued that the proposed claim sounds in negligent misrepresentation which requires an allegation that claimant relied to his detriment upon the erroneous information provided by DMV regarding the status of his license. In this regard the proposed claim sets forth the following:
4. On May 5, 2001 and apparently on dates prior thereto the State of New York by its Commissioner and Department of Motor Vehicles promulgated by way of computer and otherwise false information to the effect that Claimant's driving privilege was suspended based upon his failure to maintain insurance as required by the Vehicle and Traffic Law.

5. The said false information caused Claimant to be, on May 5, 2001, arrested by officers of the Cheektowaga Police Department, held in custody in lieu of bail and thereafter subjected to criminal prosecution all without basis therefor.
Nowhere in the proposed claim or the affidavit in support of the instant application does claimant assert any reliance on his part upon the State's alleged misrepresentations. In fact, it was the Town of Cheektowaga police who relied upon the representation that claimant's driving privileges were suspended making this case indistinguishable as pleaded from the facts in Williams v State of New York, 90 AD2d 861, in which the Third Department held that absent reliance by the claimant no cause of action for negligent misrepresentation exists (see also, Collins v Brown, 129 AD2d 902; Johnson v State of New York, 166 Misc 2d 333).

Finally, it appears that the claimant is pursuing an alternative remedy by way of an action commenced against the Town of Cheektowaga.

Upon consideration of all the relevant factors, the application for late claim relief is denied.


January 17, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

1. Notice of motion dated October 15, 2001;
  1. Affidavit of Robert B. Druar sworn to October 9, 2001 with exhibit;
  2. Affidavit of Richard B. Friedfertig sworn to October 30, 2001 with exhibit.