New York State Court of Claims

New York State Court of Claims

BAILEY v. STATE OF NEW YORK, #2007-040-044, Claim No. 112901, Motion No. M-73654


Synopsis


Pro se
Claim against DMV. Court grants State’s motion for summary judgment dismissing Claim as there is no statutory basis upon which Claimant can recover.

Case Information

UID:
2007-040-044
Claimant(s):
BAILEY, JULIUS C.
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
BAILEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112901
Motion number(s):
M-73654
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Julius C. Bailey, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 period.

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 the bank.

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 Motion).

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 Motion).

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 Motion).

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 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). 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, ¶¶ 25-26).

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 each (see 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, 2006[2] (see 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 Claimant.

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 [1980]; Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282 [1978]; Fried v Bower & Gardner, 46 NY2d 765, 767 [1978]; Platzman v American Totalisator Co., 45 NY2d 910, 912 [1978]; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]).

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.
The Claim also seeks recovery of the $35 penalty imposed by DMV for submission of the dishonored check. VTL § 202-b provides for the imposition of this penalty for submission of a check that is dishonored. Claimant asserts that he and his aunt should not be responsible for the fraud perpetrated by a third party. By correspondence dated October 13, 2006, Claimant was advised by a DMV employee that the penalty could be waived if he provided DMV with a letter from the bank stating that the check bounced because of fraudulent activity (see Ex. I attached to Motion). Defense counsel asserts in his affirmation in support of the State’s motion that Claimant has not provided DMV with such documentation (Krenrich Affirmation, ¶ 26). Claimant asserts that he sent proof of the fraudulent activity to both DMV and Assistant Attorney General Krenrich. Claimant has attached to his opposition papers a copy of his aunt’s checking account statement dated January 27, 2006, with a handwritten notation stating two checks were forged. However, there is no indication that the notation was made by the bank. If this is the information Claimant supplied to DMV, it does not comply with DMV’s request for “a letter from the bank stating the check bounced because of fraudulent activity” (Ex. I attached to Motion).

The Court concludes that the evidence submitted by Claimant is insufficient to raise a triable issue of fact that Defendant improperly: (1) overcharged him $250; and (2) assessed him $35 for a dishonored check. Therefore, the Defendant’s motion for summary judgment is granted and the Claim is dismissed.


September 12, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion for summary judgment dismissing the Claim:

Papers Numbered


Notice of Motion, Affirmation in Support and
Exhibits Attached 1


“Opposition in Support for Summary Judgement”
and Exhibits Attached 2

Filed Papers: Claim, Answer


[2].
The Court concludes that the payment was made on May 10, 2006 based on the evidence submitted by Defendant, despite Claimant’s statement that DMV received the first payment on May 10, 2005 (Bailey Opposition in Support for Summary Judgement ¶ 4). That date was three months prior to the date Claimant received notice of the assessment from DMV.