New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2004-028-504, Claim No. 104493, Motion Nos. M-66095, M-66099


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-66095, M-66099
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Michael C. Rizzo Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the parties' dispositive motions:
1) Notice of Motion and Affirmation in Support of Assistant Attorney General Michael C. Rizzo (Rizzo Affirmation) with annexed Exhibits 1-7;

2) Supporting Affidavit of Jacqueline H. Thompson (Thompson Affidavit)

3) Notice of Motion and Supporting Affirmation of Georges G. Lederman, Esq. (Lederman Affirmation) with annexed Exhibits A-B;

4) Supporting Affidavit of John Davis (Davis Affidavit);

5) Affidavit in Support/Opposition of Assistant Attorney General Michael C. Rizzo (Rizzo Reply);

6) Reply Affirmation of Georges G. Lederman, Esq. (Lederman Reply); and

7) Claimant's Memorandum of Law.

Claimant seeks damages for the Defendant's negligence in wrongfully suspending his

driver's license.

The following recitation of undisputed facts is based upon the Court's review of the papers submitted in connection with the instant motion. On August 1, 2000, an individual named Roland Parkinson was pulled over by New York City Police for alleged violations of the Vehicle and Traffic Law. Parkinson misrepresented himself to New York City Police as being the Claimant, John Davis. In doing so, Parkinson provided police with Claimant's name and birth date and a false street address in Brooklyn. Parkinson was issued three traffic summonses and arrested for unspecified crimes. The Kings County District Attorney's office determined Parkinson's true identity and prosecuted him, resulting in Parkinson's plea of guilty and incarceration. However, the non-criminal traffic summonses went unanswered. Default judgments were entered on the summonses on November 10, 2000 and Claimant's driver's license was suspended by the Defendant's Department of Motor Vehicles (DMV) on the same date. All notices regarding the traffic summonses were sent to the false address provided by Parkinson and entered on the traffic summonses by the ticketing police officer.

Claimant first learned of the foregoing chain of events, when, after being stopped for a speeding violation in the State of Rhode Island, he was advised that his New York State driver's license was suspended for failing to pay the fines levied on the three summonses and issued an additional ticket in Rhode Island for driving with a suspended license. Claimant hired counsel and endeavored to unravel the situation. Claimant was able to successfully defend against the Rhode Island charges and was likewise successful in regaining his driving privileges in New York.

Defendant has moved for summary judgment dismissing the Claim asserting that sovereign immunity for a purely governmental function precludes this claim or that the acts of the DMV are likewise immune as a product of discretion (Rizzo Affirmation ¶ 15). Claimant moves for partial summary judgment on his cause of action for negligent misrepresentation.

The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; St. Lawrence County Dep't of Soc. Servs. v Genevieve VV, 2002 NY App Div LEXIS 12681[3d Dept, December 26, 2002]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776). Once the proponent of the motion has established its entitlement to judgment, the burden shifts and the party in opposition to a motion for summary judgment "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Izzo v Lynn, 271 AD2d 801, 802; see also Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).

The critical issue on these motions is whether the DMV exercised discretion in using the address on the summons (ticket address), as argued by the Defendant, or whether DMV was required to use the address on file with the department rendering the act of notifying Claimant ministerial in nature, as that portion of Williams v State of New York, 90 AD2d 861 finding immunity in situations involving ministerial acts such as these has been overruled (Ford Motor Credit Co. v State of New York, 133 AD2d 980; Johnson v State of New York, 166 Misc 2d 333; Bell v State of New York, 140 Misc 2d 778, affd 154 AD2d 958, lv denied 75 NY2d 856).

Both parties cite to this Court's decision in Sankara v State of New York, Ct Cl, Sise, J., June 5, 2001 Claim No. 102035, Motion No. M-63054 [unpublished opn] for support of their respective positions. In Sankara this Court examined the cause of action for negligent misrepresentation as it had arisen in the context of actions by the DMV and stated as follows:
Even if there was no evidence that claimant had been informed of the error and taken steps to correct it, this Court would not be inclined to adhere to the interpretation that has been given to the statement in Williams regarding negligent misrepresentation. It is difficult to perceive a meaningful distinction between those motorists... who are apparently unaware of the incorrect information in their files, and those ...who have received notification and taken steps to correct the matter. If anything, the former has been victimized by two acts of negligence on the part of DMV – inclusion of the incorrect information in their records and failure to notify them of the adverse information or action – while the latter, being aware of the problem, certainly had an opportunity to avoid any injury and, arguably, a duty to follow through and make sure that corrections were made.

Claimant also argues that the DMV had only two choices available to it for mailing the impending suspension notice to Claimant relying on Vehicle and Traffic Law § 226(3)(b) which provides in pertinent part:
Failure to answer or appear in accordance with the requirements of this section and any regulations promulgated hereunder shall be deemed an admission to the violation as charged, and an appropriate order may be entered in the department's records... Prior to entry of an order and imposition of a fine, the commissioner shall notify such person by mail at the address of such person on file with the department or at the current address provided by the United States Postal Service in accordance with section two hundred fourteen of this chapter: (i) of the violation charged; (ii) of the impending entry of such order and fine; (iii) that such order and fine may be filed as a judgment with the county clerk of the county in which the operator or registrant is located; and (iv) that entry of such order and imposition of such fine may be avoided by entering a plea or making an appearance within thirty days of the sending of such notice...(emphasis added)[1].

The Court rejects Defendant's argument that the address on file with the department is the address provided on the traffic ticket. As noted by Administrative Law Judge Shur, DMV will only change an address when the address is offered by the driver to DMV. As such, the Court, notwithtstanding the deposition testimony of ALJ Shur to the contrary (see Rizzo Affidavit, Exhibit 5; Rizzo Reply ¶ 3; see also Thompson Affidavit), in the face of plain statutory language cannot logically deem the ticket address as the address on file with the department. The ticket address, real or bogus, is provided to a police officer as a result of police action - not to DMV for record keeping purposes. Were Vehicle and Traffic Law §226(3)(b) silent as to the address to reference then, and only then, could the Court view the decision to use the ticket address as a discretionary act. On the facts before it, the act of the DMV in notifying a motorist of adverse action, is not subject to different acceptable results. The danger in having different results, as experienced by Claimant, is both evident and unacceptable. The Court finds DMV was required to use either of the two addresses authorized by statute and hence perform a ministerial task and therefore, the State is not protected by the immunity accorded governmental actions involving the exercise of discretion.

The Court further finds that the Defendant's negligence in failing to use either of the two authorized addresses was a proximate cause of Claimant's damages.

Accordingly, the Claimant's motion for summary judgment is granted and the Defendant's motion for summary judgment dismissing the Claim is denied.

Let interlocutory judgment be entered accordingly.

The Claim is scheduled for a telephone conference on February 24, 2004 at 10:00 a.m.

February 3, 2004
Albany, New York

Judge of the Court of Claims

[1] This section was in effect until September 1, 2002. The new §226(3)(b) was amended to delete the language "or at the current address provided by the United States Postal Service" leaving only a single acceptable address.