New York State Court of Claims

New York State Court of Claims

HABER v. STATE OF NEW YORK, #2007-039-061, , Motion No. M-73952


Synopsis


Movant’s application for permission to file a late claim is granted. Proof offered in support of the motion established that movant’s service of the claim upon the Attorney General’s Office was timely, defendant had adequate notice of the essential facts and an opportunity to investigate the circumstances underlying the claim, movant has no other available remedy against the State, and defendant does not aver that it has suffered substantial prejudice. Movant offers sufficient proof in support of the motion to establish that her license had indeed been suspended, and that she did not receive notification of the suspension, and defendant does not dispute that movant’s license was suspended, nor does it offer any proof to establish that movant was notified of the suspension. Moreover, distinguishing Williams v State of New York, (90 AD2d 861 [1982]), the Court concluded that defendant’s argument that the claim is actually for negligent misrepresentation as claimant relied upon misrepresentations by local law enforcement regarding the suspension of her license is without merit.

Case Information

UID:
2007-039-061
Claimant(s):
RACHEL HABER
Claimant short name:
HABER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73952
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Sobel, Ross, Fliegel & Suss, LLPBy: Sherwin A. Suss, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michele M. WallsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant Rachel Haber (hereinafter movant) seeks an order from the Court permitting her to file a late claim arising out of the alleged negligence of the New York State Department of Motor Vehicles (hereinafter DMV). She alleges that sometime prior to January 24, 2004, the State increased the mandatory surcharge for violations from $30.00 to $50.00. Movant alleges that on January 24, 2004 she was issued a ticket by the New York City Police Department for an improper turn violation that did not contain the increased surcharge amount. On February 12, 2004, movant entered a plea of guilty and paid the former surcharge amount indicated on the ticket. Movant’s payment was subsequently tendered by DMV. On March 12, 2004, movant was convicted of the improper turn violation and her license was suspended. Movant further alleges that she was not provided with notice of the suspension of her license, and that on September 15, 2004, she was stopped, advised that she was driving with a suspended license, arrested and charged with the offenses of Aggravated Unlicensed Operation in the Third Degree, in violation of Vehicle and Traffic Law § 511 (1)(a), and Unlicensed Driving, in violation of Vehicle and Traffic Law § 509 (1). Thereafter, movant was fingerprinted, photographed and detained in a cell for approximately 20 hours. By letter dated September 20, 2004, DMV informed movant that it “investigated [her] inquiry concerning an incorrect suspension resulting from [a] summons . . . issued on 01/29/04 for Improper Turn . . . [and that DMV had] taken the necessary action to remove this suspension from [movant’s] license record.”

Defendant opposes the motion on the grounds that movant does not offer an excuse for her delay in filing a claim and that, pursuant to the Appellate Division’s decision in Williams v State of New York, (90 AD2d 861 [1982]), the proposed claim is without merit.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). When deciding whether to grant an application to file a late claim, the court is required to consider

“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

“No single factor is deemed controlling, as the presence or absence of any one factor is not determinative” (Matter of Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New York State Empls. Retirement Sys., 55 NY2d 979, 981 [1982]). “One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]. “In order for a claim to ‘appear to be meritorious’ . . . it must not be patently groundless, frivolous, or legally defective, and . . . the court must find, upon consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists” (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]).

Based upon the foregoing principles, the Court concludes that movant shall be permitted to file a late claim. Movant’s claim accrued on September 15, 2004, when she was arrested for offenses related to her operation of a motor vehicle with a suspended license. Accordingly, the Court finds that the motion, served on the Attorney General’s Office on September 12, 2007 and filed with the Court on September 13, 2007, is timely (see Court of Claims § 10 [6]; CPLR 214).

The Court further finds that, although movant does not offer an excuse for her delay in filing a claim, the entire record before the Court is sufficient to establish reasonable cause to believe that a valid cause of action exists. In her proposed claim, movant alleges, among other things, that DMV acted negligently when it improperly processed the traffic summons leading to the wrongful suspension of her license, and when it failed to notify movant that her license had been suspended. The act of notifying a driver that his or her license has been suspended is required by statute and is therefore considered a ministerial act which is “not subject to sovereign immunity” (Ford Motor Credit Co. v State of New York, 133 AD2d 980, 982 [1987]; Vehicle and Traffic Law § 510 [4-a]). Movant offers sufficient proof in support of her motion to establish that her license had indeed been suspended and that she did not receive notification of the suspension. Defendant does not dispute that movant’s license was suspended, nor does it offer any proof to establish that movant was notified of the suspension.

Nor is the Court persuaded by defendant’s argument. More specifically, defendant contends that this is a claim for negligent misrepresentation and that, like the circumstances before the Court in Williams v State of New York, (90 AD2d 861 [1982]), movant relied upon misrepresentations by local law enforcement regarding the suspension of her license, not those of the State. Therefore, movant’s cause of action for negligence against the State is without merit.

The circumstances before the Court in Williams, (supra) are distinguishable from those presently before the Court. In Williams, (supra at 862), DMV “merely provid[ed] information to the deputy sheriff” that an individual with the same name as claimant had his license suspended which resulted in claimant’s wrongful arrest and detainment. Here, DMV is alleged to have done more than “merely provide[] information” to local law enforcement. Movant alleges wrongful conduct by DMV several months prior to her arrest, as described above, when DMV suspended her license, absent notice thereof, based upon the issuance of a ticket with outdated surcharge information. Thus, insofar as the proposed claim sets forth a cause of action for negligence in the performance of a ministerial act, the Court finds that there is reasonable cause to believe that a valid cause of action exists.

The Court further finds, based on the entire record before it, that defendant had adequate notice of the essential facts and an opportunity to investigate the circumstances underlying the claim. By letter dated September 20, 2004, DMV acknowledged that it conducted an investigation into the incorrect suspension of movant’s license resulting in the removal of the suspension from her record. Moreover, movant has no other available remedy against the State for those acts of negligence described above, and defendant does not aver that it has suffered substantial prejudice by movant’s failure to file a timely claim.

Thus, after weighing the above factors, the Court chooses to exercise its discretion in favor of movant and permit her to file a late claim.

Accordingly, it is hereby

ORDERED that M-73952 is granted; and it is further

ORDERED that movant is to serve and file a proposed claim containing the above causes of action in the manner required by Court of Claims Act §§ 11 and 11-a within thirty days of the filing of this decision and order.


February 21, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated September 11, 2007;
  2. Affidavit of Merit by Rachel Haber sworn to on September 11, 2007 with exhibits;
  3. Attorney’s Affidavit in Support of Motion to File a Late Claim by Sherwin Suss, Esq., sworn to on September 12, 2007;
  4. Affirmation in Opposition by Michele M. Walls, AAG, dated October 5, 2007; and
  5. Reply Affirmation by Sherwin Suss, Esq. dated October 15, 2007.