After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Diane H. Gieseler, the Claimant herein, alleges in Claim Number 107436 that the
New York State Police have wrongfully retained her impounded 1978 GMC dump
truck. She indicates that on or about November 12, 2001 her truck was impounded
by the New York State Police based upon criminal charges against her son. On
March 28, 2002, Claimant alleges that the Dutchess County District Attorney's
Office had authorized the release of the truck, and that thereafter a Town Judge
of the Town of Pleasant Valley also executed an Order authorizing the release of
the truck. Claimant asserts that on November 27, 2002 she "went to the NYSP
barracks and spoke with Trooper Stewart and he told me he will not follow the
judge's court order and would not and will not release my vehicle. Needless to
say, I had not be (sic) given my license plates when I requested them (to
surrender to DMV) so therefore I had to pay for the insurance and registration
until it ran out. I also paid for an application to have my truck be
re-assigned with a new vehicle identification number. I had to pay to have the
vehicle towed, incorrectly I might add, to the NYS Police barracks. I had to be
subjected to the DMV suspending or revoking my driver's license due to the fact
I did not surrender the license plates. I had to do without my truck to present
time." [Claim No. 107436, ¶2]. She asks for damages in the amount of
In an affidavit submitted in support of Defendant's present motion, Lieutenant
James H. Murphy indicates that on November 12, 2001 two trucks registered and
titled to Claimant were impounded: a 1978 GMC dump truck and a 1980 Chevrolet
pickup truck. [See
, Exhibit A, Affirmation of Mary B. Kavaney, Assistant
Attorney General]. Their initial seizure was triggered by the fact that the
vehicle identification numbers (hereafter VIN) on both trucks had been removed.
The following day, Kevin Gieseler, the Claimant's son, presented titles and
bills of sale for the two vehicles at Troop K Headquarters, but Lieutenant
Murphy indicates that these documents were seized because they did not
correspond to the trucks.
With respect to the
1978 GMC truck, the VIN from the title corresponded with the cab's VIN, however
the number should have appeared on a 1973 GMC truck. Lieutenant Murphy avers
that the "discrepancy in the title is apparently due to the fact that Ms.
Gieseler registered the GMC using an incorrect VIN, and the error was not
noticed..." until the examination of the truck after the seizure. [Exhibit A,
After further examination, the New York State Police discovered that the
"confidential VIN on the 1978 GMC matched the VIN on the door frame," but "it
should not have matched...as it was determined that the cab was not the original
cab , but from another vehicle and installed on the GMC by someone other than
the manufacturer." [Exhibit A, ¶9].
On or about December 3, 2001 Kevin Gieseler was charged with one count of
Forgery of a Vehicle Identification Number after having "confessed to removing
the VIN plate from the original cab of the 1978 GMC and attaching it to the
newly installed cab on that vehicle." [Exhibit A, ¶10]. The truck, and all
the attendant paperwork, was held as evidence in the pending prosecution against
On March 27, 2002 Mr. Gieseler pled guilty to a single count of Attempted
Forgery of a Vehicle Identification Number in full satisfaction of all charges
before the Honorable Thomas Reed, in the Town of Pleasant Valley Justice Court.
The Dutchess County District Attorney's Office advised that the truck could be
released to Ms. Gieseler once she "...register[ed] it properly with the correct
VIN and could provide proof of same." [Exhibit A, ¶14].
At this point, it appears that the New York State Department of Motor Vehicles
described for Ms. Gieseler the procedures she would need to follow to obtain
replacement documents, or a new VIN, and the date of April 25, 2002 was set for
an examination of the truck. [See, Claim No. 107436, Letter to Diane
Gieseler from New York State Department of Motor Vehicles (hereafter DMV)]. It
is noted that in the correspondence from DMV, Ms. Gieseler is directed to
appear with the vehicle in Kingston, New York, and told to contact the DMV auto
theft unit - a telephone number is provided - if she is unable to appear with
the vehicle. [Id]. She wrote to the DMV e-mail address provided in the
same letter cancelling the appointment, and indicating that "The District
Attorney has instructed the State Police to release my vehicle to me. I have
made five telephone calls to get a time and day that I could go and get my
vehicle. The State Police have not to date returned any of my phone calls.
THEREFORE, I HAVE TO CANCEL MY APPOINTMENT DUE TO THE FACT, THE STATE POLICE
HAVE NOT GIVEN ME THE SAME VEHICLE." [See, Claim No. 107436, Memorandum
from Diane Gieseler to DFICANCEL@DDMV.STATE.NY.US, dated April 23, 2002]. No new
appointment was apparently scheduled.
Lieutenant Murphy indicates that he was in contact with Investigator Byron, the
DMV investigator who had scheduled the examination appointment, and Investigator
Byron had advised Murphy that Ms. Gieseler could contact him for assistance in
obtaining documentation, and Murphy also advised Claimant that he would assist
her. He states that she was reminded that she needed to satisfy proof of
According to documents attached to the Claim, another arm of the DMV, by letter
dated September 11, 2002, advised Claimant that her registration and driver's
license would be suspended without some action on her part since the liability
insurance on the truck was cancelled on August 23, 2002. A suspension order,
suspending her registration and plates for a period of twenty (20) days, was
issued September 13, 2002.
In the Claim, there is no indication of any further activity on the Claimant's
part until November, 2002. Her son's attorney obtained an Order from the
Justice Court of the Town of Pleasant Valley, dated November 13, 2002,
directing the New York State Police to allow Claimant to retrieve her truck and
any documents in their possession. Thereafter, however, a Modified Order dated
December 18, 2002 was issued allowing such retrieval "provided it is
established to the satisfaction of the New York State Police that DIANE GIESLER
(sic) is the rightful owner to the said vehicle, lacking such proof DIANE
GIESLER (sic) post a bond equivalent to the value of the vehicle...."
[See, Exhibit 1, Affirmation of Mary B. Kavaney, Assistant Attorney
General]. Claimant states in her Claim that the State Trooper would not honor
the original November 13, 2002 Order, however, Lieutenant Murphy avers that the
Order had not been received by the State Police when the trooper refused to
release the truck to her, and points out that Claimant does not mention that the
Order was modified on December 18, 2002.
In a November 13, 2002 letter from DMV Claimant was clearly advised that an
alternative to proof of ownership would be her furnishing a surety bond pursuant
to Vehicle and Traffic Law §2105(d), and necessary forms together with
contact numbers and names for assistance were
, Exhibit 2, Affirmation
of Mary B. Kavaney, Assistant Attorney General].
In the interim, Claimant's son made an application in Town Court to withdraw
his plea of guilty, a matter that was still pending as of the writing of
Lieutenant Murphy's affidavit. After some adjournments, the next scheduled
court date was March 26, 2003. Lieutenant Murphy writes that the truck is still
being held pursuant to Vehicle and Traffic Law §424, and would be turned
over to Ms. Gieseler upon presentation of proof of ownership or the surety bond.
Lieutenant Murphy avers that as of March 12, 2003, no action has been taken by
Ms. Gieseler with respect to obtaining a surety bond to Lieutenant Murphy's
No papers have been submitted by Claimant in opposition to Defendant's motion.
The Court notes that the Claim was filed with the Chief Clerk of the Court of
Claims on March 6, 2003.
In a motion to dismiss a claim for failure to state a cause of action the
movant is held to have conceded the truth of every fact alleged by the Claimant
for purposes of the motion. Civil Practice Law and Rules §3211(a)(7).
Determination of the motion, generally, does not rest upon resolution of the
ultimate facts, but rather on whether those facts asserted make out a claim.
See, Stukuls v State of New York, 42 NY2d 272, 275 (1977); cf.,
Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976). However, ".
. . bare legal conclusions as well as factual claims flatly contradicted by the
record are not entitled to any such consideration . . . (citations
omitted). ‘When evidentiary material is considered, the criterion is
whether the proponent of the pleading has a cause of action, not whether he has
stated one' (Guggenheimer v Ginzburg, . . . [43 NY2d 268], 275).
This entails an inquiry into whether or not a material fact claimed by the
pleader is a fact at all and whether a significant dispute exists regarding it .
. . (citations omitted)." Doria v Masucci, 230 AD2d 764, 765 (2d
Dept 1996), lv denied, 89 NY2d 811 (1997).