New York State Court of Claims

New York State Court of Claims

FORAN v. THE STATE OF NEW YORK, #2008-015-037, Claim No. 112581, Motion No. M-74556


Where implementation of a grace period for receipt of a traffic plea by DMV was discretionary, but implementation was not, defendant's motion for summary judgment on ground of immunity for discretionary conduct was denied.

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:
Pulvers, Pulvers & Thompson, LLPBy: James M. Marino, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212 on the ground that the conduct of the Department of Motor Vehicles (DMV) in suspending the claimant’s license to operate a motor vehicle was uniquely sovereign and discretionary thereby entitling it to the protective cloak of governmental immunity. Claimant was arrested on May 3, 2006 in the City of New York and charged with aggravated unlicenced operation of a motor vehicle in violation of Vehicle and Traffic Law § 511 (1) (a) and operating a motor vehicle without a license in violation of Vehicle and Traffic Law § 509. He was arraigned and released from confinement on May 4, 2006 (see claim, defendant’s Exhibit 2, ¶ ¶ 22 - 23). After his release, claimant allegedly learned that DMV had suspended his license in error and obtained two letters from DMV in this regard. The first dated May 9, 2006 indicated that the DMV had investigated the claimant’s inquiry regarding an incorrect license suspension resulting from the issuance of a summons for failure to wear a seat belt on September 21, 2005 and stated “[w]e have taken the necessary action to remove this suspension from the license record” (defendant’s Exhibit 10-I). Unsatisfied with this letter, claimant's father requested that DMV issue another letter admitting that the suspension was entered on the claimant’s record in error. By letter dated May 17, 2006 and signed by Carol Christi,[1] the DMV again indicated that it had investigated the claimant’s inquiry regarding an incorrect suspension and, in addition, that “this suspension was on your record in error” (see defendant’s Exhibit 10-J). Armed with this letter, the claimant succeeded in securing the dismissal of the criminal charges brought against him.

The confusion surrounding whether or not the claimant’s license was properly suspended stems from certain grace periods implemented by DMV. The proof shows claimant had been notified by letter dated November 7, 2005 that his license would be suspended effective November 28, 2005 for failure to appear and answer a ticket he had received on September 21, 2005 for driving without a seat belt (see defendant’s Exhibit 10-C). According to DMV records, claimant’s plea of guilty together with the required payment were not received until November 30, 2005 and his license was therefore suspended effective November 28, 2005 (see defendant’s Exhibit 5, affidavit of Carol Stone, ¶ 7). Claimant attributes the delay in answering the ticket to a change of address. However, it is undisputed that the first report to DMV of the claimant’s change of address was on November 30, 2005 when the plea and check were received. Claimant’s license was reinstated on December 9, 2005 when the check for $90.00, which his father sent on his behalf, was processed. Defense counsel states that “an additional $35.00 was due for payment in full and to clear his license suspension for a total of $125.00 ($40.00 fine + $50.00 surcharge + $35.00 suspension termination fee)” (see defendant’s Exhibit 1, Affirmation of Frederick H. McGown, III, ¶ 9). As characterized by defense counsel the $90.00 payment was applied in the following manner:
“[T]he first $35.00 was applied to the suspension termination fee, the next $50.00 was applied toward the surcharge and the remaining $5.00 was applied to the $40.00 fine. This left a balance due and owing of $35.00 on the fine. As the result of the payment of the [license] termination fee, Mr. Foran’s suspension was terminated on 12/9/05" (see defendant’s Exhibit 1, Affirmation of Frederick H. McGown, III, ¶ 10).
Carrie Holman[2] testified at an examination before trial that she received a telephone call regarding the timeliness of claimant’s payment and a facsimile transmission from the DMV District Office in White Plains on May 5, 2006, which included a copy of the check for the aforesaid fine and surcharge (defendant’s Exhibit 8, p. 17). She checked the date stamp and saw that the check had been received in the Traffic Violations Bureau on November 30, 2005 (id. at pp. 17, 22). Laboring under the purported misconception that there was then in effect a ten day rule, which allowed payments to be considered timely if received within ten days of the due date, she concluded that the payment received from the claimant on November 30, 2005 was timely notwithstanding the November 28, 2005 due date (defendant’s Exhibit 8, pp. 24, 34, 35). After obtaining the approval of a supervisor she took the actions necessary to remove the license suspension from the claimant’s record (defendant’s Exhibit 8, pp. 35-38). Ms. Holman also had the $35.00 suspension fee removed from the claimant’s record (defendant’s Exhibit 8, p. 42). A few weeks prior to Ms. Holman’s deposition she was informed by Carol Stone that she had made an error in this case because there was no ten day grace period in effect during the period of time the claimant’s fine became due.

Carol Stone also testified at an examination before trial. She reviewed the computer record relating to the claimant’s seat belt ticket and testified that a letter advising the claimant that he owed an outstanding balance of $35.00 on the seat belt ticket was mailed on February 24, 2006 (defendant's Exhibit 6, p. 58; Exhibit 10-F). The letter informed the claimant that if payment was not received by April 11, 2006, his license would be suspended. Although the letter was mailed to the address provided to DMV on November 30, 2005, the balance remained due on April 11 and the claimant's license was therefore suspended.

Ms. Stone testified that after the instant action was commenced she received a communication from Ida Traschen in the Legal Bureau requesting an investigation into whether or not the claimant’s license was properly suspended. She undertook an investigation which revealed that there was no ten day grace period in effect at the time payment of the claimant’s fine and surcharge were received on November 30, 2005. As a result, she concluded that the claimant’s license had been properly suspended on April 11, 2006 when the $35.00 balance was not timely received.

Defendant argues that it is immune from liability because the function of DMV is uniquely sovereign and implementation of the ten-day grace period was discretionary[3]. In support of its contention that the record-keeping activity of the DMV in this case was a purely governmental activity outside the scope of the State's waiver of immunity the defendant cites Williams v State of New York (90 AD2d 861 [1982]) . Williams, however, was reconsidered by the Appellate Division, Third Department in Ford Motor Credit v State of New York, (133 AD2d 980 [1987]). In that case the claimant alleged that the certificate of title for a motor vehicle was negligently issued to the lessee of the vehicle instead of the claimant (owner) thereby resulting in damage to the claimant when the lessee sold the vehicle to a bona fide purchaser. The Court in Ford rejected the argument that Williams created a blanket sovereign immunity for the State's record-keeping activities and stated: "[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 [1983]). The preparation of paperwork, the Court held, was a ministerial task permitting no exercise of reasoned judgment which could typically produce different results. Viewed as such, the activities of the State were not subject to sovereign immunity (cf. County of Nassau v State of New York, 1 AD3d 732 [2003]; Chrysler Credit Corp. v State of New York, 262 AD2d 768 [1999]). The Ford Court made clear that no exception to the traditional analysis exists where the activity is uniquely sovereign. Thus, 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 [2000]). 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[1986]).

The defendant argues in essence that because the implementation of a grace period was discretionary, the alleged suspension of the claimant’s license in negligent disregard of this period is immune from liability. However, it has long been held that the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols (Kagan v State of New York, 221 AD2d 7, 10 [1996]).

While DMV may indeed have the discretion to implement the type of grace periods at issue here, questions of fact remain unresolved regarding whether or not a grace period was in effect on November 28, 2005, the date payment of the fine and/or fees were due but unpaid. As the court’s role on a motion for summary judgment is issue finding, not issue determination, summary judgment must be denied (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

Based on the foregoing, defendant’s motion for summary judgment is denied.

May 29, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 20, 2008 with exhibits;
  2. Affirmation of James M. Marino dated April 13, 2008 with exhibits.

[1].Ms. Christi uses the professional moniker of Carol Stone.
[2]. Carrie Holman utilized the professional alias Carrie Kellogg (see defendant’s Exhibit 8, Examination Before Trial transcript of Carrie Holman, p. 7) .
[3]. Although the defendant did not raise immunity as a defense, it is settled law that an unpleaded defense may “serve as the basis for an affirmative grant of [summary judgment] relief in the absence of surprise and prejudice, provided that the opposing party has a full opportunity to respond” (Sheils v County of Fulton, 14 AD3d 919, 921 [2005]; see also Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]).