New York State Court of Claims

New York State Court of Claims

Owens v. STATE OF NEW YORK , #2004-018-315, Claim No. None, Motion No. M-67875


Motion to file late claim denied.

Case Information

GREGG OWENS, Individually and d/b/a Simpson Enclosed Auto Transport f/k/a Simpson Exotic Car Transport
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
SMITH, SOVIK, KENDRICK & SUGNET, P.C.By: Patrick B. Sardino, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to file a late claim, and Defendant opposes the motion. The

underlying facts, as can be gleaned from the submitted documents, are as follows:

On August 29, 1999, Doug Crawford (apparently a friend and associate of Movant) picked up a 1987 Porsche in Princeton Junction, New Jersey, allegedly for transport to Irvine, California. The owner of the vehicle, Richard Gross, via his son, paid Mr. Crawford the requested transport fee of $1,292. Mr. Gross had contracted with a company called "The Car Carrier" who subcontracted the job to Movant's company, Simpson Exotic Car Transport (hereinafter referred as Simpson). The delivery of the car was to occur in 7 to 13 days.

On August 11, 1999, Steven Kim contracted with The Car Carrier to have his 1999 Volkswagen Passat transported from Gwinnett, Georgia, to Fremont, California. The subcontractor on that job was also Simpson, who picked up the vehicle on September 3, 1999, with a delivery time of 7 to 13 days. There is no indication that Mr. Kim paid for the transport in advance.

In October 1999, despite numerous efforts to locate their undelivered vehicles, Mr. Gross and Mr. Kim filed police reports and stolen vehicle reports with their respective insurance carriers. Ultimately, the insurance companies paid their insureds the value of the vehicles and took title to the cars in the event they were ever recovered.

In April 2003,[1] the two vehicles were recovered by the New York State Police from a garage and body shop owned by John Scriven in Skaneateles, New York. Mr. Scriven told the police the vehicles had been left with him for storage purposes by Mr. Owens, the movant. He further stated that Movant had not paid storage fees on these vehicles.

Movant alleges in his motion papers, that the State Police illegally, intentionally, and without just cause, impounded the 1987 Porsche and the 1999 Volkswagen. Movant claims he lawfully possessed them, as they were subject to bills of lading and storage fees. The motion was filed within the statute of limitations for a like action against a citizen of the State, therefore, the motion is timely.

Although there are six factors to consider when deciding a late claim motion (Court of Claims Act § 10[6]), the Court will address first whether or not Movant has a meritorious cause of action, as that factor has been found to be the most important factor, since it would be pointless to allow litigation of a baseless lawsuit (Savino v State of New York, 199 AD2d 254). Movant relies upon the bills of lading in seeking monetary damages for the impounding of the vehicles. Although vague, it appears Movant believes he is entitled to storage fees from someone, and that by impounding the vehicles, the New York State Police have prevented him from collecting these fees. He now seeks to recover those fees from the defendant, and alleges that the State Police failed to conduct a proper investigation.

In order to establish the appearance of merit, there must be factual allegations which identify the act or omission upon which the State's liability is predicated (Berry v State of New York, 115 AD2d 153, 154). General and conclusory allegations of negligence are insufficient to establish that the claim appears meritorious (Witko v State of New York, 212 AD2d 889, 891; Calco v State of New York, 165 AD2d 117, 119, lv denied 78 NY2d 852; Simpson v State of New York, 96 AD2d 646; Sevillia v State of New York, 91 AD2d 792). The movant's affidavit and the attached proposed claim contain only general statements of liability which fail to meet the standard required to find that the claim appears meritorious (see Heisler v State of New York, 78 AD2d 767). This alone results in the lack of merit.

In contrast, the defendant has supplied a detailed affidavit of the State Police Officer, Steven M. Kelley, with supporting documentary evidence. In his affidavit, Investigator Kelley describes his investigation and sets forth the following facts:

On April 7, 2003, he and another investigator located two vehicles[2]

which they believed to be stolen and obtained their vehicle identification


On the same day, he consulted the National Insurance Crime Bureau and

learned that both vehicles were reported stolen by the insurance companies.

His further investigation into the vehicles, on the same day, revealed in

detail the facts set forth above regarding the transportation of the vehicles

from the east coast to California and the failure of the vehicles to be


On April 8, 2003, Investigator Kelley confirmed with the insurance companies

that they had paid theft claims for the vehicles and acquired title to them.

He requested copies of the claim files.

The same day he checked on Movant's criminal history.

On April 10, 2003, Investigator Kelley returned to the body shop where the

vehicles were stored and eventually obtained a sworn statement from the

owner stating that Movant had stored the vehicles at his place of business

since 1999 and had not paid the storage fees.

On April 10 or 11, the State Police impounded the vehicles.

In May 2003, an attorney wrote to Investigator Kelley requested the return of

the vehicles and threatened legal action. Investigator Kelley called the attorney

and advised him that the insurance companies had legal title to the vehicles so

they would not be returned.

After consideration of the undisputed facts presented by Defendant, Movant has failed to set forth facts which would support a cause of action against the State. There are no factual allegations of intentional or malicious wrongdoing. Investigator Kelley acted reasonably, given the information presented, in impounding the vehicles titled to the respective insurance companies and retaining the vehicles.

Turning to the other factors, which must be considered on a late claim application, Movant has failed to show that the delay in filing was excusable. He alleges that for several months his former attorney was negotiating with the State Police to return the vehicles. The documents, and Investigator Kelley's affidavit, show that the State Police were not open to negotiating the return of the vehicles as of May 28, 2003, still within the 90 days of the cars being impounded. Reliance upon his attorney's correspondence, to support his position that he was negotiating a settlement with the State after that date, was not reasonable and does not excuse the delay (Modern Transfer Co. v State of New York, 37 AD2d 756; Society of NY Hospital v State of New York, 21 AD2d 733, app denied 14 NY2d 490; Professional Charter Services, Inc. v State of New York, 166 Misc 2d 306). Nor does the allegation that Movant was out of the country provide an acceptable excuse, as there is no statement setting forth what period of time he was gone, or an explanation of his alleged inability to communicate with his attorneys while he was away (cf. Klingler v State of New York, 213 AD2d 378 [unspecified period of incapacitation insufficient]).

Whether the State had notice of the essential facts, an opportunity to investigate the circumstances, and whether the State would be prejudiced by the untimeliness of the claim are related and will be addressed together. The State Police had notice of many of the essential facts by virtue of its actual investigation. Although an employee's knowledge will not always be imputed to the State, in this situation, the letter dated May 12, 2003, from Movant's prior attorney to the State Police threatening legal action, coupled with the thorough investigation conducted by the State Police before it impounded the vehicles, meets the notice requirement. There has been no claim of prejudice by the State. These factors would weigh in favor of granting the motion.

Finally, Movant may have other available remedies, such as pursuing claims against the insurance companies who now own the vehicles.

After consideration of all of the factors, the Court hereby DENIES the motion for permission to file a late claim.

July 19, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affidavit of Patrick B. Sardino, Esquire, in support, with exhibits attached


Movant's Memorandum of Law in support.........................................................3

Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto.............................4

Attorney Reply Affidavit of Patrick B. Sardino, Esquire, in support...................5

[1]The movant's papers say the vehicles were impounded on or about April 30, 2003, and the affidavit of Investigator Kelley indicates it occurred on April 10 or 11, 2003.
[2]These are the two vehicles reported stolen by their owners four years before.