New York State Court of Claims

New York State Court of Claims

HOFFMAN v. THE STATE OF NEW YORK, #2002-015-298, Claim No. 103815, Motion No. M-65419


Claimant failed to demonstrate on summary judgment motion that he suffered damages as a result of the unlawful suspension of his driver's license so Court granted the motion and dismissed the claim for its failure to state a cause of action.

Case Information

PETER L. HOFFMAN The caption of this claim was amended by order dated May 1, 2001 to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim was amended by order dated May 1, 2001 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Peter L. Hoffman, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The portion of defendant's motion for summary judgment seeking an order dismissing the claim on the grounds that the Court lacks jurisdiction because the claim was not timely served is denied but the portion seeking dismissal for the claim's failure to state a cause of action is granted. The claim seeks to recover $50,000.00 in damages arising out of the alleged unlawful suspension of claimant's driver's license by the Department of Motor Vehicles (DMV) without notification, hearing or due process of law.

On the motion, defense counsel argues that the claim is untimely because claimant did not serve his notice of intention to file a claim within 90 days of the claim's accrual. Counsel asserts that the claim accrued either on July 21, 1999 when the claimant's driver's license was suspended for non-payment of a 10 year old traffic fine or on December 7, 1999 when claimant was informed of the suspension by an unidentified New York City Deputy Sheriff [sic]. It is asserted that the service of claimant's notice of intention to file a claim on May 12, 2000 was untimely (see, Court of Claims Act § 10 (3)).

As set forth in section 11 (c) of the Court of Claims Act an objection based upon the untimely service of a notice of intention must be raised with particularity either in a pre-answer motion to dismiss or in the defendant's answer. While counsel alleges in her supporting affirmation that such an objection was raised with particularity in the defendant's verified answer (Exhibit C) the Court finds this contention to be a strained interpretation at best.

The sixth affirmative defense set forth in the defendant's answer filed with the Court on March 22, 2001 reads as follows:
The Court lacks jurisdiction over the claim because the notice of intention did not adequately describe the location of the incident alleged in the claim, or adequately describe the manner in which the incident occurred, and therefore the claim is untimely.

The above quoted language may clearly not be viewed as complying with the requirements of Court of Claims Act § 11 (c), especially the direction that the objection or defense be stated "with particularity". In view of the failure to adequately assert the defense of untimeliness either in a pre-answer motion to dismiss the claim or with particularity in the answer the defense has been waived by operation of Court of Claims Act § 11 (c) and dismissal on that ground is denied.

The defendant also moves to dismiss the claim for failure to state a cause of action on the ground that the claimant has not suffered a cognizable injury. It is argued that because the claimant was not arrested or his vehicle towed or impounded he has suffered injury to neither his person nor property as the result of any alleged negligence by the State.

The claim states only that the claimant has sustained "un-calculated damages" because his driving privileges were unlawfully suspended. In his affidavit in opposition to the motion the claimant states "[t]he damages, that I am aware of at this time, are those of my time . . . . [a]s I am self-employed, each and every hour which this plaintiff spent on this matter . . . is time that I could have spent in profitable ways."

It is established that "[a]n action to recover for negligence does not lie unless (1) the defendant owed the plaintiff a duty, (2) the defendant failed to discharge that duty, and (3) the plaintiff suffered damages as a proximate result of such failure" (Hryniak v Littauer Hosp. Assn., 86 AD2d 699). Claimant's attempt to recover damages for time spent pursuing this claim, which allegedly could have been spent in more profitable ways (see, claimant's affidavit, para 4), is unavailing. Neither the claim nor the affidavit in opposition to the motion support a finding that even under the most expansive of views the claimant has sustained legally cognizable damages.

Even if the Court were to view the instant claim as seeking to recover lost profits in the operation of claimant's private investigation business as an alleged natural consequence of the State's commission of a tortious act, claimant's allegations on the motion in regard to such demands are at best both speculative and remote. Claimant does not claim the loss of contracts or business but only that his time could have been used more productively. Such an allegation is insufficient to defeat the instant motion. Accordingly, lost profit damages have not been demonstrated (see, Levine v American Fed. Group, 180 AD2d 575; Hirschfeld v IC Sec., 132 AD2d 332, 336, appeal dismissed 72 NY2d 841) nor has claimant even alleged any other injury which could be found to give rise to compensable damages. Absent proof of damages proximately caused by the State's alleged negligence it is clear that the instant claim lacks merit and should be dismissed. The defendant's motion is granted and the claim is dismissed.

October 21, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 27, 2002;
  2. Affirmation of Kathleen M. Resnick dated June 27, 2002 with exhibits;
  3. Affirmation of Ida Traschen dated June 26, 2002 with exhibits;
  4. Affidavit of Peter L. Hoffman sworn to August 15, 2002.