New York State Court of Claims

New York State Court of Claims

CHARTER ONE v. THE STATE OF NEW YORK, #2004-015-394, Claim No. 108386, Motion Nos. M-67887, CM-67960


Synopsis


Case Information

UID:
2004-015-394
Claimant(s):
CHARTER ONE AUTO FINANCE CORP.
Claimant short name:
CHARTER ONE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108386
Motion number(s):
M-67887
Cross-motion number(s):
CM-67960
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Harris Beach, LLPBy: Kevin Tompsett, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (8) for lack of jurisdiction stemming from the claim's alleged untimely service is denied. Claimant's cross-motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied as unnecessary. The claim herein seeks to recover damages for the negligence of the New York State Department of Motor Vehicles (DMV) which apparently issued a certificate of title on a 1998 Pontiac Grand Prix automobile without noting claimant's previously filed lien thereon. The claim was filed on October 10, 2003 and served upon the Attorney General on October 14, 2003.

Defendant moved to dismiss the claim on the ground that it was not served within 90 days of its accrual as required by Court of Claims Act § § 10 (3) and 11 (a) (i). Specifically, defense counsel in her affirmation in support alleges, upon information and belief, that claimant became aware that its recorded lien had been erroneously removed from the vehicle's title on May 2, 2002 when it repossessed the vehicle from Neil W. Richardson and discovered that United Airlines Employees Federal Credit Union (United) was the sole lien holder of record. Counsel argues that accordingly claimant's service of the claim after July 31, 2002 was untimely and deprived the Court of jurisdiction to adjudicate the claim.

Alternatively defense counsel asserts, also upon information and belief, that claimant learned during the course of Mr. Richardson's Chapter 7 Bankruptcy proceeding which concluded on March 18, 2003 that its lien had been replaced by the United lien. Counsel argues that the ninety day period for timely service of the claim measured from March 18, 2003 expired on June 16, 2003 and that service of the claim on October 9, 2003[1] was untimely and deprived the Court of jurisdiction to hear and decide the claim.

Claimant opposed the motion and cross-moved for late claim relief pursuant to Court of Claims Act § 10 (6). Claimant's papers include a memorandum of law, an affirmation of counsel (Kevin Tompsett) with exhibits and an affidavit of Tony Lokot, claimant's National Recovery Manager with exhibits.

Mr. Lokot, who alleges familiarity with the relevant facts, takes issue with several of the factual representations made by defense counsel in her affirmation in support of the motion. Mr. Lokot denied that claimant repossessed the vehicle from Neil Richardson. He also denied defendant's allegation that on May 2, 2002 United provided proof to claimant that it (United) was the sole lien holder named on the vehicle title. Finally, he denied that claimant became aware that its lien had been removed on March 18, 2003 when claimant received a copy of a discharge order from the United States Bankruptcy Court for the Northern District of New York in the case of Neil W. and Nadine K. Richardson. These denials are, in part, substantiated by the exhibits attached to claimant's papers on the cross-motion.

The defendant's motion to dismiss the claim must be denied. The defendant has provided no support for its assertion that claimant received notice that its lien had been removed and replaced by a lien in favor of United on either May 2, 2002 or March 18, 2003. The only such proof offered on the motion is a copy of claimant's bill of particulars which provides no information reasonably germane to the issue of notice and the conclusory allegations of defense counsel which are made only "upon information and belief." Such a record is entirely inadequate to support the relief requested. Defendant's motion to dismiss the claim as untimely served and filed is denied. Claimant's cross-motion for late claim relief is denied as academic.

The denial of the defendant's motion renders consideration of the cross-motion for late claim relief unnecessary. The cross-motion is therefore likewise denied.


April 6, 2004
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 January 12, 2004;
  2. Affirmation of Kathleen M. Resnick dated January 12, 2004 with exhibits;
  3. Notice of cross-motion dated January 27, 2004;
  4. Affirmation of Kevin Tompsett dated January 27, 2004 with exhibit;
  5. Affidavit of Tony Lokot sworn to January 27, 2004 with exhibits.

[1]Pursuant to Court of Claims Act § 11 (a) (i) service by certified mail, return receipt requested upon the Attorney General is not complete until it is received. Defendant's Exhibit A indicates that the notice of claim [claim] was received on October 14, 2003.