New York State Court of Claims

New York State Court of Claims

FONTAINE v. THE STATE OF NEW YORK, #2006-015-094, Claim No. 109452, Motion No. M-71572


Court denied claimant's motion for summary judgment in case involving arrest for operation of a motor vehicle with a suspended license. Claimant did not meet burden of proof eliminating all material issues of fact.

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:
Neal Foreman, EsquireBy: Neal Foreman, Esquire and Sheila J. Feldman, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 1, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment determining the State's liability as a matter of law is denied. The verified claim filed June 8, 2004 alleges that on March 24, 2004 in the City and County of New York claimant was erroneously and unlawfully arrested[1] on charges of unlicensed operation of a motor vehicle (Vehicle & Traffic Law § 509 [1]) and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle & Traffic Law § 511 [1] [a]). The claim further alleges that, in fact, claimant's license was not suspended at the time of his arrest. Claimant seeks to predicate liability against the State upon "a failure of the agents, servants and/or employees of the State of New York to properly update its records of license reinstatement and in negligently failing to record the reinstatement of claimant's license and/or in negligently failing to notify other agencies of said reinstatement, City, State, and/or local and/or in failing to properly correct Motor Vehicle Records, with ample time to do so." Claimant avers that he was wrongfully detained in custody and falsely charged with crimes as a result of the defendant's negligent acts and omissions.

Claimant now moves for summary judgment seeking a determination of the defendant's liability as a matter of law. The defendant opposed the motion.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, 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 demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the 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 (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

Claimant's motion is supported by the affirmation of one of his attorneys (Sheila J. Feldman) with attached exhibits including a copy of an unauthenticated misdemeanor complaint dated March 24, 2004 (Exhibit 1)[2]; an unauthenticated certificate of disposition purportedly issued by the Criminal Court of the City of New York (Exhibit 2); copies of the verified claim and verified answer (Exhibits 3 and 4 respectively); two copies of a transcript of claimant's examination before trial dated April 26, 2005 (Exhibit 5); a copy of an examination before trial transcript of Carol Stone, a supervisor in the division of communications and records of the New York State Department of Motor Vehicles (DMV) (Exhibit 6); two copies of a transcript of an examination before trial of Steve D. Mattison, a data processing manager for DMV (Exhibit 7); a copy of a letter addressed to claimant dated March 26, 2004 signed by M. Michael, a representative of DMV's Traffic Violations Division (Exhibit 8); and unauthenticated copies of a computer printout with no indication of the printout's source or date of publication.

While somewhat disjointed and confusing it appears from claimant's examination before trial testimony that he was issued a ticket for failure to wear a seat belt on November 12, 2003 (Fontaine pp 10-11)[3]. Claimant failed to appear and answer the charge and on or about December 29, 2003 DMV issued a notice of suspension advising claimant that he had to appear with regard to the ticket prior to January 18, 2004 or his license would be suspended. Claimant did not appear prior to that date and his license was automatically suspended. On January 20, 2004 he appeared at a DMV office on Rector Street in Manhattan where, upon payment of a fine and suspension termination fee, his driving privileges were reinstated. Claimant was issued a temporary license and a receipt which he was told to retain for at least 30 days while driving (Fontaine pp 13-16). Claimant testified that subsequent to the January 20, 2004 restoration of his driving privileges and issuance of a new license but prior to his March 24, 2004 arrest he returned to DMV because he had misplaced his license (Fontaine, pp 14-15). DMV issued a replacement temporary license. Claimant believes that visit occurred within a month of his March 24, 2004 arrest (Fontaine pp 15-16) and that upon the issuance of that replacement license no one at DMV advised claimant that his license was suspended (Fontaine p 15).

Claimant was arrested at Eighth Avenue and 16th Street around 9:15 a.m. on March 24, 2004 while operating his employer's vehicle. The arresting officer questioned him regarding one of his prior addresses (193 Cane Street) at which the claimant had resided in the 1970's. Upon the receipt of claimant's answer the officer informed him that he was under arrest for driving with a suspended license. He was taken to the 20th Precinct for processing, transferred to the 54th Precinct and later returned to the 20th Precinct where he spent the night (Fontaine pp 22-23). He was released from custody the following morning.

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. [b]) and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; Zuckerman v City of New York, 49 NY2d 557). The only proof which claimant offered on the motion to establish DMV's involvement in disseminating erroneous information regarding the suspension of his driver's license was an unauthenticated criminal complaint (Exhibit 1) signed by NYPD Officer Ryan. Since this document is offered for the truth of the facts it contains it is clearly hearsay (see Prince, Richardson on Evidence § 8-101 et seq. [Farrell 11th ed]; People v Huertas, 75 NY2d 487, 491-492; People v Nieves, 67 NY2d 125; Lee v Illinois, 476 US 530, 543 (n 4); Wigmore, Evidence § § 1361-1365) and, therefore, insufficient to support a grant of summary judgment (Finkelstein v Cornell Univ. Med. Coll., 269 AD2d 114; Dix v Pines Hotel, 188 AD2d 1007).

Furthermore, the testimony of DVM employees Carol Stone (Exhibit 6) and Steve D. Mattison (Exhibit 7) submitted by the movant indicate that DMV computer records demonstrate that the suspension of claimant's driver's license was terminated on January 20, 2004 and that DMV's records would not have indicated otherwise when accessed by Officer Ryan on March 24, 2004. In fact, claimant's own testimony, including additional hearsay testimony regarding conversations he had with an unnamed DMV employee in Manhattan on March 25, 2004 and a telephone conversation with another unnamed DMV employee in Albany (Fontaine pp 31-32) demonstrate that DMV had appropriately and timely removed the suspension imposed upon claimant's license prior to his March 24, 2004 arrest. Similarly, claimant testified that an unnamed female NYPD officer seated in a patrol car performed a computer check of his driving record at his request and informed him that his license was valid and was not suspended on March 24, 2004 (Fontaine pp 36-37). Excluding the hearsay evidence submitted on the motion, the remaining proof appears to support the defendant's rather than claimant's position regarding the status of his license suspension.

Claimant's motion for summary judgment determining the State's liability as a matter of law is denied.

June 1, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 13, 2006;
  2. Affirmation of Sheila J. Feldman dated April 13, 2006 with exhibits;
  3. Affidavit of Michael C. Rizzo sworn to April 25, 2006;
  4. Affidavit of Steve D. Mattison sworn to April 25, 2006;
  5. Reply affirmation of Sheila J. Feldman dated April 29, 2006.

[1].The claim does not specify the arresting agency and claimant did not file a verified bill of particulars with the Clerk of the Court within 10 days of its service as required by 22 NYCRR 206.5 (c). It appears from Exhibit 1 attached to claimant's motion papers [and discussed infra] that his arrest was effected by a New York City police officer named Kenneth Ryan.
[2].The Court received a certified copy of the complaint and other miscellaneous court documents on May 19, 2006 more than two weeks subsequent to the motion's return date. Those documents were not considered on the motion.
[3].References are to pages of the named individual's examination before trial transcript unless otherwise indicated.