New York State Court of Claims

New York State Court of Claims

ADAR v. STATE OF NEW YORK, #2005-032-008, Claim No. 109813, Motion Nos. M-69264, CM-69483


A claim based on impoundment and sale of an automobile by the New York City Department of Finance (Parking Violations) does not state a cause of action against the State of New York or any other entity that can be sued in this Court.

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):
Cross-motion number(s):
Claimant's attorney:
Kolber & Linn, PCBy: Allen A. Kolber
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 17, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claim No. 109813, was filed in the Court of Claims on September 8, 2004. A copy of the claim had been served on the Office of the Attorney General almost a year earlier on October 31, 2003 (King affirmation, Exhibit A).[1]

The claim arises from the seizure and subsequent sale of claimant's 1994 Infiniti automobile by the City of New York. The vehicle was impounded on June 2, 2003 for unpaid summonses and towing fees. When he went to the impound lot where his car was being held, claimant was told that in order to get a release for his car he would have to 1) show proof of current insurance, and 2) pay his outstanding summons. The claim recites that on June 3 and June 6, 2003, claimant went to the Department of Motor Vehicles (DMV) but was told that he could not receive a release until the DMV computer was updated, since according to the computer records his vehicle was listed as uninsured. Claimant alleges that this was not the case and had not been the case since February 26, 2003, when his insurer, Allstate Insurance Company, reinstated its policy on claimant's vehicle. In addition, DMV itself had written to claimant stating that as of May 31, 2003 his license, which had been suspended for failure to insure his vehicle, was reinstated upon receipt of acceptable proof of insurance.

The claim further recites that on June 23, 2003, twenty-one days after the Infiniti was impounded, it was sold by the New York City Department of Finance to satisfy the judgment against claimant. Earlier on that same day, however, claimant had paid all of his outstanding tickets and towing and storage fees. Claimant alleges that the car was sold improperly, as the sale took place before the expiration of the 30 day time period to which he was entitled by section 511-b(3) of the Vehicle and Traffic Law, a provision that he alleges is controlling in this situation. In addition, claimant states that he never received from the Department of Finance either the money received for the sale of his car or reimbursement of the amounts he paid to satisfy the judgment against him (claim, ¶11).

Counsel for defendant has moved for dismissal of this claim on two grounds: that it is untimely and that this Court does not have jurisdiction over the New York City Department of Finance (Parking Violations). Conceding that the claim was not timely filed (Kolber affirmation, ¶12), counsel for claimant has responded by cross-moving for permission to file an untimely claim pursuant to section 10(6) of the Court of Claims Act.

Technically, claimant's motion is fatally flawed because the motion papers do not contain a copy of the proposed claim, a statutory requirement. They do, however, contain a copy of the "Complaint" that was previously served on the Attorney General (in 2003) (Kolber affirmation, Exhibit A). The Court will assume, for the purposes of the cross motion, that a document identical to the claim filed with this Court and designated Claim No. 109813 is the proposed claim (see, Wesley v State of New York, #2004-016-017, Claim No. 108312, Motion Nos. M-67710, M-67879, CM-67784, April 1, 2004, Marin, J.).

The State's principal opposition to claimant's cross motion rests on its argument that the proposed claim lacks merit. All other factors being equal, untimely claims should be permitted unless they are patently groundless, frivolous, or legally defective and there is no reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). On the other hand, permitting a defective claim to be filed, even if the other factors in Court of Claims Act § 10 (6) support granting the motion, would be meaningless and futile (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967 [Ct Cl 1982]). In support of the meritoriousness of his claim, claimant's counsel recites that the vehicle was sold after being held less than 30 days and "[i]t is uncontroverted that New York State was not permitted to sell the vehicle less than 30 days after impoundment" (Kolber affirmation, ¶16).

Unfortunately for claimant, the State of New York did not impound his vehicle, did not sell the vehicle, did not collect the money that he paid for his fines, and did not collect or receive the money from the sale of the automobile. Claimant apparently named the proper defendant in the "complaint" served on the Attorney General: the City of New York Department of Finance (Parking Violations). Consequently, he has both instituted his lawsuit and sought permission to late file in the wrong court. The many documents annexed to the "complaint" submitted with the cross motion, establish that all of the actions connected to the impoundment and later sale of the vehicle were carried out by the City of New York and the New York City Department of Finance. The affidavit of Ida L. Traschen, Associate Counsel for the Counsel's office for DMV, (State's Affirmation in Opposition to Cross-Motion, Exh. A) provides further confirmation that DMV has no role in carrying out the impoundment, sale, or collection or distribution from money resulting from claimant's payment and from the sale of the vehicle.

The only allegations that are connected to a State agency are those relating to the suspension and subsequent reinstatement of claimant's license for failure, for a short period of time, to provide insurance for the vehicle. Even if there was some problem with the DMV computers on June 3 and June 6, 2003 which prevented claimant, at that time, from getting written confirmation of ownership and proof of insurance, there is nothing he could have done with such documentation at that time, for he did not pay the outstanding fines and fees until June 23, 2003.

For the reasons set forth above, Motion No. M-69264 is granted and Claim No. 109813 is dismissed, and claimant's Cross Motion No. CM-69483 is denied.

February 17, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion to dismiss Claim No. 109813 and on claimant's cross motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Glenn C. King, Esq., AAG, with annexed exhibits;

2. Notice of Cross Motion and Supporting Affirmation of Allen A. Kolber, Esq., with annexed exhibits;

3. Affirmation in Opposition of Glenn C. King, Esq., AAG, with annexed Affidavit of Ida L. Traschen, Esq.

Filed papers: Claim

[1]Although the content of the two claims appear to be identical, the document served on the Attorney General listed City of New York, Department of Finance (Parking Violations) as defendants while the claim filed with the Clerk of the Court properly names only the State of New York.