New York State Court of Claims

New York State Court of Claims

GIESELER v. THE STATE OF NEW YORK, #2003-030-555, Claim No. 107436, Motion No. M-66676


Synopsis


Motion to dismiss for failure to state cause of action granted. Claim dismissed. No indication that claimant ever followed Department of Motor Vehicles or New York State Police procedure for return of vehicle. No claim for damages.

Case Information

UID:
2003-030-555
Claimant(s):
DIANE H. GIESELER Caption amended to reflect the only proper defendant.
Claimant short name:
GIESELER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107436
Motion number(s):
M-66676
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DIANE H. GIESELER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 22, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1 to 3 were read and considered on Defendant's motion


to dismiss the within claim for failure to state a cause of action, brought pursuant to Civil


Practice Law and Rules §3211(a)(7):

1,2 Notice of Motion, Affirmation by Mary B. Kavaney, Assistant Attorney General and accompanying exhibits

  1. Filed Papers: Claim

Opposition: None

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 $7,500.00.

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.[1] 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, ¶7].

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 Claimant's son.

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 ownership requirements.

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 provided.[2] [See, 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 knowledge.

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).
In this case, reading the verified Claim - the only sworn statements provided by Claimant - together with the sworn statements of Lieutenant Murphy, as well as the documentary evidence provided as attachments to the claim and as attachments to the present motion, reveals Claimant does not have a cause of action. Omissions in the verified Claim are explained by the Defendant's submissions, creating no significant factual dispute. There is no indication in the Claim that the Claimant ever followed through with the suggestions of both the DMV and the New York State Police concerning the return of her vehicle. Indeed, at the time this Claim was filed, the underlying criminal prosecution had not been resolved. There is no indication that the State's agents have violated any statute or applicable regulation, or otherwise violated any duty owed to this Claimant.

Accordingly, Defendant's Motion Number M-66676 is granted, and Claim Number 107436 is hereby dismissed in its entirety for failure to state a cause of action. Civil Practice Law and Rules §3211(a)(7).

July 22, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] He later notes that the paperwork for the Chevrolet was correct and it was returned to Kevin Gieseler.
[2] Lieutenant Murphy indicates that DMV sent her "copies of original documents" and instructions on how to handle the matter, on September 10, 2002, but nothing attached to the Claim or the Affirmation by the Assistant Attorney General corresponds with this assertion, except this November 13, 2002 letter.