On cross-examination the claimant testified that he was issued a ticket for
failure to wear a seat belt during November, 2003. On or about January 18, 2004
he received notification from the Department of Motor Vehicles that his license
had been suspended as a result of his failure to appear or respond with regard
to the prior seat belt infraction. On January 20, 2004 he went to the
Department of Motor Vehicles Office located on Rector Street in Manhattan where
he paid a bond and was issued a new license.
Claimant testified that he lost his license approximately one month prior to
his arrest on March 24, 2004. The claimant went to a Department of Motor
Vehicles Office and was issued a replacement license. He was not informed at
that time by DMV personnel that his license was suspended.
On March 24, 2004, the claimant was stopped while in his vehicle by two New
York City Police Officers. Claimant testified that the officers approached his
vehicle and that he provided them with his license and registration. Both
officers then returned to their vehicle and later informed the claimant that he
was under arrest for driving with a suspended license. Although claimant
testified that his arrest resulted from a computer search of records made by the
officers he also acknowledged that he did not know what information the officers
entered into the computer in conducting their search (e.g., claimant's name,
motorist ID, etc.). The claimant also acknowledged that various criminal court
records (Exhibits 2, 2a, 2b, 2c, 2d) pertaining to his arrest and prosecution
refer to him as "Schubar" Fontaine. The claimant's name is properly spelled
Finally, Mr. Fontaine testified that immediately following his release from
custody on March 25, 2004 he went to a Department of Motor Vehicle Office and
obtained an abstract of his license which did not show that his driving
privileges were suspended on March 24, 2004. Various exhibits were received
in evidence and the defendant moved to dismiss the claim at the close of
claimant's proof for failure to establish a prima facie case. The Court
reserved decision on the motion at trial. That motion is now denied.
The defendant called Carol Stone to the stand who testified that she has been
employed by the New York State Department of Motor Vehicles since 1987, and is
currently a supervisor in the Department's communications and records office.
She stated that she is familiar with the Department's computer record processes
and procedures including those relating to license suspensions and the issuance
of duplicate licenses. Ms. Stone testified that prior to issuing a duplicate
license the Department searches the applicant's license record. If the original
license is suspended, a duplicate license will not be issued.
The witness identified Exhibit A as an expanded ticket display containing
information relating to ticket no. 4157799549 issued to the claimant Schuber
Fontaine on November 12, 2003 for failure to wear a seat belt. Exhibit A
reflects a return date of December 19, 2003 and that a scofflaw notice was
mailed to the claimant on December 29, 2003 upon his failure to appear on the
seat belt ticket. Exhibit A also relates that claimant's license was suspended
on January 18, 2004 and that on January 20, 2004 the claimant paid a $40.00
bond, $35.00 suspension/termination fee and a fine. Claimant's license
suspension was terminated as of January 20, 2004 upon payment of the bond, fee
The witness identified Exhibit B as a license display for Schuber Fontaine.
The document contains the claimant's motorist identification number which is the
same as shown on Exhibit D, an interim license issued to the claimant. Exhibit
B contains an entry which indicates "CLEAR ON; 01/20/2004 scofflaw answered".
Claimant's license status was indicated as "valid". According to Ms. Stone the
claimant's license was valid on March 24, 2004 and any police officer accessing
claimant's driving record would have been so advised.
On cross-examination the witness testified that changes or updates to driver
records are processed automatically by the DMV computer system.
The defendant next called Stephen Mattison. Mr. Mattison testified that he is
the manager of the DMV data processing unit and that he is familiar with the
Department's computer systems relative to license sanctions, including
suspensions. He identified Exhibit C as records obtained from the DMV license
update program which he described as a computer program which runs each evening
to update license records. Exhibit C contains log records relating to the
claimant Schuber Fontaine and includes both his date of birth and client
According to the witness, license update program logs utilize numeric codes to
identify license status and the dates of any changes thereto. Mr. Mattison
marked Exhibit C to identify the numeric code which indicates that the
claimant's license was suspended on January 18, 2004 and that the suspension
related to a particular ticket issued to the claimant bearing ticket no.
4157799549. The witness also marked the exhibit to indicate a clearance
transaction processed on January 28, 2004. The numeric code contained in the
log indicates the reason for the clearance transaction was that the claimant had
answered a ticket. Upon completion of the clearance transaction the claimant's
license display as well as his license status was updated automatically.
Mr. Mattison testified that he is aware that law enforcement personnel access
DMV license display files and that the files may be searched using a motorist's
client identification number, motorist's identification number or name and date
of birth. According to the witness the latest date by which DMV records would
have shown the claimant's license as suspended was January 28, 2004, the date
the clearance transaction was processed. After that date, claimant's license
display would not have shown his license as suspended.
On cross-examination the witness testified that Exhibit C was produced "within
the last month". He described Exhibit C as raw data shown or contained in the
Department of Motor Vehicles computer archives. He agreed that expertise is
required to read and interpret the coded information contained in the exhibit
and that the information entered into the Department's computer logs is not
checked or reviewed to make sure that the information entered is accurate.
Mr. Mattison testified that the New York State Police Information Network
(NYSPIN) is an application used by police agencies to access Department of Motor
Vehicle records. Information contained in DMV license update files are
transmitted directly to NYSPIN which in turn makes the records available to
police personnel. The witness testified that he is not aware of procedures in
place to verify that the information given to NYSPIN by DMV is accurate.
On redirect the witness testified that based upon his review of Exhibits A, B
and C, a check of the claimant's driving record on March 24, 2004 would have
shown that his license was valid and would not have shown the license to be
The defendant rested upon the conclusion of Mr. Mattison's testimony and
defense counsel renewed his previous motion to dismiss for failure to establish
a prima facie case. That motion is denied.
Defendant argues in its post-trial brief that dismissal is appropriate on the
ground that waiver of immunity from suit does not extend to claims arising out
of the exercise of governmental activity that is uniquely sovereign in nature
and foreign to any activity which could be carried on by a private person. The
defendant cites Williams v State of New York, 90 AD2d 861, to support its
contention that the recordkeeping activity of the DMV in this case was a purely
governmental activity outside the scope of the State's waiver of immunity.
Williams, however, was reconsidered by the Third Department in Ford
Motor Credit Co. v State of New York, 133 AD2d 980. The claimant in
Ford alleged that the certificate of title for a motor vehicle it owned
was negligently issued to the lessee of the vehicle instead of to the claimant
thereby resulting in damage to the claimant when the lessee sold the vehicle to
a bona fide purchaser. Ford rejected the argument that Williams
created a blanket sovereign immunity in the area of the State's recordkeeping
activities stating: "[T]he issue is not merely whether those acts can be
characterized as uniquely sovereign, but whether the acts constitute a
governmental function involving the exercise of discretion"(id. at 981,
citing Tango v Tulevech, 61 NY2d 34). The preparation of paperwork, the
Court held, was a ministerial task not involving the exercise of reasoned
judgment which could typically produce different results. Viewed as such, the
activities of the State were not subject to sovereign immunity. The Court in
Ford made clear that no exception to the traditional analysis exists
where the activity is uniquely sovereign. Where the act is governmental in
nature, liability may be imposed for ministerial acts under traditional tort
principles (Lauer v City of New York, 95 NY2d 95, 99). Conversely, the
State is immune from liability for the injurious consequences of official
action involving the exercise of discretion (Tarter v State of New York,
68 NY2d 511) Defendant's argument that it is shielded from liability by a cloak
of immunity for purely sovereign activities is therefore rejected.
Defendant makes no argument that the activities of the DMV were anything other
than ministerial. Indeed, it is apparent from the testimony that the
recordkeeping activities for which the claimant seeks to hold the State liable
fall comfortably within the realm of exclusively ministerial acts for which
the State may be found liable in negligence. Recovery is available, however,
only if the ministerial action is otherwise tortious (Tango v Tulevich,,
supra, at 40). The evidence presented at trial failed to establish that
the defendant was negligent in its recordkeeping activities. Claimant argues
in his post-trial brief that "[t]he claimant's arrest is proof positive that his
license suspension was not removed and the State failed in its duty to timely
post the same, resulting in his arrest and incarceration." Claimant argues in
essence therefore that the arrest, without more, is sufficient circumstantial
evidence of negligence to permit a finding of liability in his favor. While
negligence may be proved circumstantially, and claimant need not " 'positively
exclude every other possible cause' of the [incident] but defendant's
negligence. . . . [His] proof must render those other causes sufficiently
'remote' or 'technical' to enable [the fact finder] to reach its verdict based
not upon speculation, but upon the logical inferences to be drawn from the
evidence" (Schneider v Kings Highway Hosp. Center, 67 NY2d 743,744
[citations omitted]; Gayle v City of New York, 92 NY2d 936; Burton v
State of New York, 283 AD2d 875 ). As stated by the Court of Appeals in
Bernstein v City of New York, 69 NY2d 1020, 1022 , "[i]f 'there are
several possible causes of injury, for one or more of which the defendant is not
responsible, plaintiff cannot recover without proving the injury was sustained
wholly or in part by a cause for which the defendant was responsible.' "
Significantly, the fact that claimant's criminal records reflect a misspelling
of his name provides an equally plausible explanation for his arrest, i.e., that
a mistake in inputting claimant's name while conducting a NYSPIN search resulted
in the provision of erroneous information regarding the status of claimant's
license. In this case, claimant failed to proffer direct evidence that DMV was
negligent in its recordkeeping activities and the facts do not permit an
inference of negligence by circumstantial evidence (see Nieskes &
Craig v Schoonerman, 40 AD2d 931).
The evidence established that the latest date by which the DMV records would
have shown the claimant's license as suspended was January 28, 2004 and that the
information provided NYSPIN is taken directly from DMV records. It was
established, therefore, that as of the date of the claimant's arrest on March
24, 2004 any inquiry submitted to NYSPIN with the correct name or other
identifying information of the claimant would have indicated that his license
was valid on the date of his arrest.
Claimant's heavy reliance on Schwandt v State of New York, 4 Misc 3d
405, is misplaced. In that case it was established at trial that the warrant
for the claimant's arrest had not been cancelled upon the payment of a fine for
traffic infractions and that procedures employed by personnel at the Troy City
Police Court had not been followed. As a result, the court found that the
defendant was at fault for the claimant's arrest and any injuries arising
therefrom. Here, on the other hand, the evidence presented at trial established
that the records of DMV appropriately reflected the reinstatement of the
claimant's license prior to the date of his arrest.
The claimant did not establish that the State negligently failed to update his
license status by a preponderance of the evidence received at trial. As a
result, the claim is dismissed.
Let judgment be entered accordingly.