ST. MARTIN v. THE STATE OF NEW YORK, #2006-015-082, Claim No. 111703, Motion No.
Court dismissed claim filed on December 5, 2005 as untimely where it alleged
accrual on December 5, 2003 and neither a claim nor notice of intention was
served upon the Attorney General within 90 days of accrual. Contract with DMV
transcription service requires that copy of DMV transcript are provided to DMV
hearing officers for administrative appeal only and does not constitute contract
between State and claimant to obtain a copy.
|TIMOTHY ST. MARTIN
1 1.The caption was amended sua sponte by Court order dated March 8, 2006
to name the only properly named defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
The caption was amended sua sponte by Court
order dated March 8, 2006 to name the only properly named defendant.
FRANCIS T. COLLINS
Timothy St. Martin, Pro Se
Honorable Eliot Spitzer, Attorney General
Michael C. RizzoAssistant Attorney General
April 24, 2006
See also (multicaptioned
Defendant's pre-answer motion to dismiss the claim pursuant to CPLR 3211 for
lack of jurisdiction is granted. On April 27, 2002 claimant was charged with
violating Vehicle and Traffic Law § 1180 (d) for driving 74 miles per hour
(mph) in a 40 mph zone on Interstate 490 in the County of Monroe. At an
administrative hearing held at the New York State Traffic Violations Bureau in
Rochester on August 7, 2002 claimant pled not guilty and orally moved to dismiss
the charge based upon the issuing officer's (Trooper B. W. Olsen's)
non-appearance. The hearing referee (Richard LaBue) denied claimant's motion
and, as alleged by claimant, refused to make claimant's motion part of the
record of the proceeding. The hearing was rescheduled for November 27, 2002.
On that date claimant was found guilty of the charge. He was fined, his driver'
s license was suspended and a State-mandated surcharge was assessed against him.
Claimant served a notice of administrative appeal (Exhibit
) by certified mail dated December 19, 2002
on which he checked box #1 which read: "I disagree with the guilty verdict and
penalty. I want the Appeals Board to review the typed transcript of the hearing
testimony. I understand that I must pay for the transcript (On the back of this
form, you must explain why you disagree with the guilty
. By letter dated January 14, 2003
(Exhibit 10) the DMV Appeals Board notified claimant's then-attorney (John
Annechino) of the procedure for obtaining a transcript of the hearing and the
costs associated therewith. Claimant or his attorney submitted the initial
$50.00 payment and later supplied an additional $25.00 payment requested by the
transcription service by letter dated March 14, 2003 (Exhibit 13). A request
for a second payment of $1.56 was made by letter dated April 30, 2003 (Exhibit
15). The $1.56 balance was to be paid within 30 days of April 30, 2003.
The Appeals Board notified claimant on June 18, 2003 that timely payment for
the transcript had not been made and that his appeal would be reviewed as to the
penalty only. Claimant was advised to contact the Board within 10 days if the
board's information was erroneous (Exhibit 16). By undated letter (Exhibit 17)
claimant alleged that the required payments for the transcription had been made.
The Board agreed to reopen claimant's appeal to a full review upon timely
payment of the $1.56 charge of the transcription service.
In a notice dated November 3, 2003 the Appeals Board advised claimant that the
transcript of the hearing had been reviewed and appeal arguments heard. The
Board determined that the charges were sustained by clear and convincing
evidence, the hearing was fair and the appeal arguments did not merit a reversal
(Exhibit 20). The Board upheld the penalties imposed including the fine,
surcharge and license suspension. The notice advised claimant of his right to
seek judicial review in an article 78 proceeding in Supreme Court.
Instead of immediately commencing an article 78 proceeding claimant sought a
direct appeal by letter to the Commissioner of Motor Vehicles (Exhibit 24) and
received a reply from George Christian, Chair of the Appeals Board (Exhibit 25).
Mr. Christian's letter informed claimant that records of the transcriber
demonstrated its receipt of final payment on July 15 and shipment of the
transcript to claimant's attorney on that date. The transcript was not
returned as undeliverable. On October 30, 2003 having received its copy of the
transcript of the hearing and having received no further communication from
claimant's attorney, the Board rendered its final decision.
By order to show cause dated December 22, 2003 signed by the Hon. Evelyn Frazee
claimant commenced an article 78 proceeding in Supreme Court challenging the
Appeals Board's determination (Exhibit 26). In a letter decision dated February
10, 2004 (Exhibit 27) Justice Frazee transferred the matter to the Appellate
Division, Fourth Department finding the issue presented to be one of
substantial evidence requiring referral to the Appellate Division pursuant to
CPLR 7804[g] (Exhibits 27 and 28). Claimant, however, abandoned this article 78
proceeding after transfer upon his erroneous belief that he was required to
file a timely notice of appeal to the Appellate Division and had failed to do so
(see paragraph of claim referring to Exhibit 27).
The instant claim served upon the Attorney General and filed with the Court
Clerk on December 5, 2005 alleges an accrual date of December 5, 2003 and that
a notice of intention was served upon the Attorney General and the Commissioner
of Motor Vehicles by certified mail, return receipt requested on May 21,
. Both the notice of intention and the
claim describe the acts or omissions complained of as follows:
i) Breach of contract for nonperformance for not producing transcript of
hearing at the Department of Motor Vehicles Rochester Traffic Violations Bureau,
Summons No. OWD5285641. The hearing took place 27 November 2002.
ii) Negligence for failure to provide adequate (or any) remedy when notice of
breach was given by facsimile 2 December 2003 and reply stating refusal of
remedy postmarked in Albany, NY 10 December 2003. (Copy of this letter and its
postmarked envelope is included as EXHIBIT 25.)
iii) By refusal to provide remedy, Defendant is liable for all related costs
and disbursements, including attorney's fees as provided by General Obligations
Law as well as UCC
The claim seeks $3,000 in damages including attorney's fees in addition to
declaratory and other equitable relief.
Prior to serving and filing its answer the defendant moved to dismiss the claim
for lack of jurisdiction. For the reasons which follow that motion is
It is well established that on a motion pursuant to CPLR 3211 (a) (7) the
Court's role is to examine the pleading to determine whether the claimant has a
cause of action rather than whether a cause of action has been stated (Quail
Ridge Assocs. v Chemical Bank, 162 AD2d 917, 918, lv dismissed 76
NY2d 936). In doing so the Court should construe the pleading liberally, accept
the facts alleged as true (Carp v Marcus, 112 AD2d 546) and accord
claimant the benefit of all favorable inferences which may be drawn from the
pleading (see Campaign for Fiscal Equity v State of New York, 86
NY2d 307, 318).
As the Court of Appeals in Guggenheimer v Ginzburg, 43 NY2d 268, 275
observed: "the sole criterion is whether the pleading states a cause of action,
and if from its four corners factual allegations are discerned which taken
together manifest any cause of action cognizable at law a motion for dismissal
will fail (see, Foley v D'Agostino, 21 AD2d 60, 64-65; Siegel,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:24 , p 31;
4 Weinstein-Korn-Miller, NY Civ Prac., par 3211: 36)."
Even applying these liberal standards to the claim the Court concludes that the
claimant has failed to satisfactorily allege a viable basis for liability
against the State.
Claimant has offered no proof of any contract entered into with the defendant.
To the extent that he relies upon the language set forth on the appeal form
(Exhibit 9) quoted above, such language expresses the signer's desire to have
the Appeals Board review the typed transcript of the hearing testimony and the
signer's willingness to pay the cost of the transcript. It obligates neither
the State nor the transcription service to supply a copy of the transcript to
the claimant. Similarly, while the letter of instruction from the Appeals Board
may have indicated that upon proper payment the transcriber would send a copy of
the transcript to claimant's attorney and the Board, it clearly indicated that
arrangements for the transcript and payments were to be made to Associated
Reporters Int'l. Inc., and not the Appeals Board. It further appears from
claimant's own exhibits (see Exhibit 13, 15 and 25) that the
transcription was mailed to claimant's attorney on July 15, 2003. Noticeably
absent in opposition to this motion is an affirmation from claimant's former
attorney refuting the claimant's own documentary evidence (see Exhibit
The record is barren of any evidence tending to show the existence of a
contract with the State of New York and absent such proof the portion of the
claim alleging breach of contract fails to state a cause of action and is
Furthermore even a liberal reading of the claim fails to disclose any basis
whatsoever for a negligence cause of action against the State. The letter of
George Christian dated December 4, 2003 informing claimant that there was no
further administrative appeal available from the Board of Appeals decision is
neither negligent nor otherwise actionable. The claim therefore fails to state
a cause of action sounding in negligence.
Additionally, Court of Claims Act section 10 (3) relating to negligent conduct
requires service of either a notice of intention to file a claim or a claim upon
the Attorney General within 90 days of the claim's accrual. The instant claim
on its face alleges that it accrued on December 5, 2003. On this motion the
parties agree that service of a notice of intention to file a claim upon the
Attorney General by certified mail, return receipt requested, occurred on or
about May 21, 2004
and service of the claim
itself occurred on December 5, 2005. Each of these dates is more than ninety
days after the claim's alleged accrual. Defendant's assertion of untimely
service is properly asserted in this pre-answer motion (see
Claims Act § 11 [c]).
The Court of Appeals has consistently found that "[b]ecause suits against the
State are allowed only by the State's waiver of sovereign immunity and in
derogation of the common law, statutory requirements conditioning suit must be
strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721,
724; Lichtenstein v State of New York, 93 NY2d 911). As a result it is
well established that the time limitations contained in section 10 of the Court
of Claims Act are jurisdictional in nature and dismissal is appropriate for
failure to comply therewith (Baker v State of New York, 186 AD2d 329).
To the extent that claimant sought to assert a cause of action in negligence the
claim is untimely.
Accordingly, for the reasons set forth above the defendant's motion is granted
and the claim is dismissed.
April 24, 2006
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated December 27, 2005;
Affidavit of Michael C. Rizzo sworn to December 27, 2005, with exhibit;
Affidavit of Timothy R. St. Martin sworn to January 10, 2006 with exhibit.
.All references herein to Exhibits refer to
the numbered Exhibits attached to the claim unless otherwise noted.
.Claimant did not provide a copy of the back
of the form, however, Exhibit 9 includes a two-page letter signed by claimant
explaining his disagreement with the verdict.
.Claimant did not file proof of receipt by the
Attorney General of the notice of intention but defense counsel has not denied
receipt of the notice (see
Rizzo affidavit in support of defendant's
motion, para 3).
.Court of Claims Act § 27 prohibits the
award of attorneys fees except as provided therein. The Court finds that the
Uniform Commercial Code has no application under the facts alleged.
.This date is the alleged date of mailing.
Court of Claims Act § 11 (a) (i) provides that certified mail, return
receipt requested service upon the Attorney General is complete when it is
received. The Court does not know the date of receipt in this case.