For the reasons set forth below, Defendant’s motion pursuant to CPLR 3212
seeking summary judgment dismissing the Claim because there is no statutory
basis on which Claimant can recover is granted.
The facts underlying the Claim are not in dispute.
On May 18, 2005, Claimant was convicted of driving while intoxicated
(see Ex. C attached to Motion). Pursuant to Vehicle and Traffic Law
(hereinafter VTL) § 1199, motorists who are convicted of a drug/alcohol
violation must pay a Driver Responsibility Assessment. The amount of the Driver
Responsibility Assessment under the statute is $250 per year for a three-year
Claimant had the option of paying the Driver Responsibility Assessment in the
full amount of $750 or, in the alternative, making a minimum annual payment of
$250 each year for three years. Claimant received a Driver Responsibility
Assessment Statement from the Department of Motor Vehicles (hereinafter DMV)
dated August 9, 2005, indicating that such payment was due September 8, 2005
(see Ex. D attached to Motion).
As a result of Claimant’s failure to pay the first installment of the
assessment by September 8, 2005, his license was suspended on October 25, 2005
pursuant to VTL § 1199(4) (see Ex. F attached to Motion). On May
10, 2006, Claimant’s suspension was removed after the first installment of
the assessment was received by DMV (see Ex. C attached to Motion).
DMV issued Claimant a second Driver Responsibility Assessment Statement dated
August 9, 2006. Again, Claimant had the option of paying the remaining portion
of the assessment in the full amount of $500 or, in the alternative, making a
second $250 minimum annual payment. Such payment was due September 8, 2006
(see Ex. E attached to Motion). On or about August 15, 2006, a check was
issued to the Commissioner of Motor Vehicles in the amount of $500. The check
was written by Claimant’s aunt upon her account at North Fork Bank.
Claimant was identified on the check by reference to his DMV Client ID Number.
The memo entry on the check states “Assessment Paid In Full”
(see Ex. K attached to Motion). The check was dishonored and returned by
Pursuant to VTL § 202-b, DMV imposed a $35 penalty in connection with the
submission of a dishonored check. Claimant was notified, in writing, that the
check had been dishonored and that his license would be suspended indefinitely,
effective October 15, 2006, if he failed to pay DMV, by certified check or money
order, the full amount of the dishonored check and the penalty, totaling $535
(see Ex. G attached to Motion).
In a letter to DMV dated October 12, 2006, Claimant mailed two money orders
totaling $285, constituting a second minimum annual payment of the Driver
Responsibility Assessment, in the amount of $250, together with $35 to cover the
dishonored check penalty. In his letter, Claimant requested that the $35
penalty be refunded, explaining that there were insufficient funds to cover the
August 15, 2006 check because of the fraudulent acts of a third party. Claimant
stated “I have enclosed a seperate [sic] money order for the $35.00 and I
am paying what I owe now which is $250.00” (see Ex. H attached to
In a reply dated October 13, 2006, DMV returned Claimant’s $285 payment,
informing Claimant that he owed the full $500 amount of the dishonored check, in
addition to the $35 penalty. He was informed, however, that the penalty would
be waived if he could provide a letter from the bank stating that the check
bounced because of fraudulent activity (see Ex. I attached to
As a result of Claimant’s failure to pay the full amount of the check
that was returned by the bank and the dishonored check fee, his driver’s
license was suspended on October 15, 2006 (see Exs. C and G attached to
In a letter dated October 19, 2006, Claimant again sent the two money orders
totaling $285, together with a third money order in the amount of $250. In his
letter, Claimant stated “I do not owe you $500.00 today. I owe you
$250.00 today and the balance [sic] $250.00 is not due until September 2007 ...
I have sent you another money order in the amount of $250.00. You are to verify
the information I gave you and return my $250.00 money order and my $35.00 money
order.” (see Ex. J attached to Motion).
DMV accepted the three money orders issued by Claimant in the total amount of
$585 and, on October 20, 2006, the suspension on Claimant’s license was
removed (see Ex. C attached to Motion).
The Claim was served upon Defendant and filed with the Clerk of the Court on
October 20, 2006. The Claim alleges that DMV made an error in making Claimant
pay $250 for a payment that was not due until September 2007 and seeks a refund
of that amount, as well as a refund of the $35 dishonored check fee and costs,
and expenses incurred in bringing this Claim.
Summary judgment is a drastic remedy to be granted sparingly and only where no
material issue of fact is demonstrated in the papers related to the motion
(see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965];
Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26
AD2d 729 [3d Dept 1966]).
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. Ctr., 64 NY2d 851, 853 ; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404 ). Failure to make such a
prima facie showing requires a denial of the motion, regardless of the
sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr.,
supra at page 853).
In support of its motion, Defendant has submitted, inter alia, the
affirmation of Assistant Attorney General Michael T. Krenrich, who asserts that
Claimant chose to pay the full outstanding amount of the Driver Responsibility
Assessment by sending DMV a check for $500. Counsel asserts that once the
“check bounced, [D]efendant had no choice but to seek to recover the full
amount plus the statutory penalty fee” pursuant to New York State Uniform
Commercial Code (UCC) § 3-413 (Krenrich Affirmation, ¶¶
The evidence submitted by Defendant establishes that in August 2005, Claimant
was informed by DMV that he owed a Driver Responsibility Assessment of $750,
which he could pay in full at one time, or in three annual installments of $250
Ex. D attached to Motion). Claimant chose to pay the $250
minimum annual payment in 2005 (see
Ex. E attached to Claimant’s
opposition papers). That first payment was received by DMV on May 10,
Ex. C attached to Motion). A
second Driver Responsibility Assessment statement was sent to Claimant in August
2006 indicating that he owed $500. Once again, Claimant was given the choice of
either paying such amount in full, or making a second minimum annual installment
of $250 (see
Ex. E attached to Motion). It is undisputed that Claimant
elected to pay the assessment in full, that a check in the amount of $500 was
drawn on his aunt’s account and sent to DMV (Ex. K attached to Motion),
and that the check was dishonored by her bank. Defendant then required Claimant
to pay the total assessment of $500 as is set forth in UCC § 3-413(2).
That statute provides that the drawer of a check engages that, upon dishonor of
the draft and any necessary notice of dishonor or protest, he or she will pay
the amount of the draft to the holder, or to any endorser who takes it up.
Thus, upon dishonor of the check submitted to DMV to pay Claimant’s
assessment, DMV was entitled to demand payment of $500, the amount of the
dishonored check. In this instance, the drawer of the check was not the
Claimant, but, rather, Claimant’s aunt. Nevertheless, there is no dispute
that the check was drawn in order to satisfy in full Claimant’s
outstanding Driver Responsibility Assessment. Thus, the Court determines that
DMV was entitled to demand that the check be honored in order for Claimant to
avoid having his license suspended.
Based upon this record, the Court finds that Defendant’s submissions in
support of its motion for summary judgment satisfy the prima facie
showing required to warrant judgment as a matter of law if not rebutted by
Given Defendant’s prima facie showing, it is incumbent upon
Claimant to produce evidentiary proof in admissible form sufficient to require a
trial of material questions of fact on which he rests his Claim, or else he must
demonstrate an acceptable excuse for his failure to meet the requirement; mere
conclusions, expressions of hope or unsubstantiated allegations or assertions
are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562
; Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282
; Fried v Bower & Gardner, 46 NY2d 765, 767 ; Platzman
v American Totalisator Co., 45 NY2d 910, 912 ; Mallad Constr. Corp.
v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 ).
In opposition to the motion, Claimant submitted numerous exhibits and his own
unverified statement. Mr. Bailey asserts that his aunt’s check to DMV was
dishonored by her bank for insufficient funds because she was the victim of
fraud by a third party. His argument appears to be that, in 2005, he elected to
pay his assessment in three payments of $250. Therefore, his 2006 payment of
$500 was more than he was required to pay in year two. Thus, he should have
only been required to pay $250 when the check was dishonored and his final $250
payment should not have been required and due until September 2007.
In 2005, Mr. Bailey decided to make the Minimum Annual Payment of $250
(see Ex. E attached to his opposition papers). Mr. Bailey states that in
2006, he decided to pay off his debt to DMV and paid the remaining assessment of
$500 (Bailey Opposition in Support for Summary Judgement, ¶¶ 7 &
8). By electing this option, the total amount of the assessment became due.
When the check was dishonored, Claimant could not then decide to revoke the
election he had made to pay the outstanding assessment in full and make a new
election, instead, to make a second Minimum Annual Payment. He made his choice
to pay the full assessment and must stand by that choice. Thus, the Court finds
Claimant is not entitled to recover. The Court also notes, in passing, that,
even had Claimant elected to make a second Minimum Annual Payment in 2006, the
third and final installment of $250, the subject of this dispute, would have
been due by September 8, 2007 (see Exs. D and E attached to Motion) and,
thus, would now be due.