New York State Court of Claims

New York State Court of Claims

JEAN LOUIS v. THE STATE OF NEW YORK, #2006-015-091, Claim No. 109483A, Motion Nos. M-71307, CM-71404


Court denied claimant's motion for summary judgment which was supported by affidavit of non-attorney manager of claimant's law firm. Court granted defendant's cross-motion for summary judgment dismissing negligent misrepresentation claim.

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:
Salis & Associates, P.C.By: Owolabi Salis, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment determining the defendant's liability as a matter of law is denied. Defendant's cross-motion for summary judgment seeking dismissal of the claim is granted. This claim seeks damages for posttraumatic stress disorder alleging that claimant was arrested on March 24, 2004 by members of the New York City Police Department (NYPD) on Amsterdam Avenue near 154th Street in the County of New York and charged with driving a motor vehicle while his driver's license was suspended. The claim alleges further that the DMV erroneously suspended claimant's driver's license.

Claimant's motion for summary judgment is supported by the affidavit of a non-attorney manager of the law firm of Salis and Associates, P.C. with exhibits and a memorandum of law, copies of the pleadings and non-certified copies of what appear to be records of the New York State Department of Motor Vehicles containing handwritten notations. Some of the unauthenticated documents contained in claimant's Exhibit 5 refer to an arrest for operating a motor vehicle without insurance on 1/6/04 but neither the claim nor any other document submitted on the motion establishes a connection between the summons issued on 1/6/04 and claimant's arrest on 3/24/2004.

Defendant opposed claimant's motion citing the absence of adequate support for the motion including an affidavit from someone with direct knowledge of the relevant facts. The Court agrees that the affidavit of the manager of Salis and Associates, P.C. lacks any probative value and is insufficient to support claimant's summary judgment motion (see, Starbo v Ruddy, 66 AD2d 950, lv denied 47 NY2d 711; Harding v Buchele, 59 AD2d 754). Claimant has therefore failed to meet his burden on the motion since it lacks an affidavit by a person having direct knowledge of the facts (CPLR 3212 [b]) and the motion is therefore denied.

Defendant cross-moved for summary judgment seeking dismissal of the claim on the grounds that the claim fails to allege facts sufficient to state a cause of action for negligent misrepresentation. Although defense counsel did not specifically identify the basis of his contention that the claim fails to state a cause of action, it appears from paragraph 20 of defense counsel's affirmation that the cross-motion is based upon claimant's non-reliance upon information supplied by the Department of Motor Vehicles. In a decision dismissing a similar cause of action Judge Ferris D. Lebous in Gallo v State of New York, Ct Cl, November 22, 2000 [Claim No. 99514, Motion No. M-62128, UID # 2000-019-539] stated:
In order to properly assert a negligent misrepresentation cause of action, Claimant and no one else, must have relied upon the misinformation to his detriment. (6B Warren, Negligence in the New York Courts [4th ed], Misrepresentation of Facts, § 17.03[1][b]). Here, as in many similar cases, the reliance on the misinformation was by an agency (e.g. police) and not the Claimant as required. (Williams v State of New York, 90 AD2d 861 [trooper, not plaintiff, relied on erroneous DMV records; claim dismissed]; Johnson v State of New York, 166 Misc 2d 333 [deputy sheriff, not claimant, relied on inaccurate DMV records; claim dismissed]; Collins v Brown, 129 AD2d 902 [police, not plaintiff, relied on misidentification by witness/defendant]). As such, the State has met its burden of establishing the right to judgment as a matter of law and the burden shifts to Claimant to come forward as '[t]he party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted].' (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The instant claimant has not opposed the defendant's cross-motion. Accordingly, it is granted and the instant claim is dismissed. The trial of the claim scheduled for June 16, is cancelled.

May 22, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 2, 2006;
  2. Affidavit of Marjorie Lindo sworn to February 2, 2006 with exhibits;
  3. Notice of cross-motion dated March 10, 2006;
  4. Affirmation of Paul F. Cagino dated March 10, 2006.