New York State Court of Claims

New York State Court of Claims

RAWCLIFFE v. THE STATE OF NEW YORK, #2009-038-511, Claim No. 114951, Motion No. M-76082


Claimant’s motion for summary judgment denied. Motion was supported by attorney affirmation, which is not competent evidentiary support for the motion. To the extent claimant’s affidavit is properly submitted in support of the motion, it lacked sufficient factual allegations to support a prima facie case of negligence by the Department of Motor Vehicles

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:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 3, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim seeks damages flowing from the alleged negligence of the New York State Department of Motor Vehicles (DMV) in causing claimant’s driver’s license to be suspended and in failing to advise him of that suspension. Claimant now moves for partial summary judgment on the issue of liability. Despite the absence of opposition by defendant, the motion must be denied upon a failure of proof. A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Sauzo v Weiss, 11 AD3d 220, 221 [1st Dept 2004]). A motion for summary judgment must be supported by an affidavit of “a person having knowledge of the facts” (CPLR 3212[b]), and in the absence of such support, the movant does not meet its prima facie burden (see JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373, 384-385 [2005]).

Claimant’s notice of motion states that the motion is supported by the affirmation of Steven Hoffner, Esq., the “affidavit” of claimant, and annexed exhibits. However, the document purporting to be claimant’s affidavit (see Hoffner Affirmation, Exhibit D) sets forth facts that are generally relevant to any damages claimant may have suffered, but it does not provide adequate facts to make out a prima facie case of negligence against the State. The document is a photocopy of a “sworn to” statement that describes the events of the day claimant was arrested for driving with a suspended license, and an assertion that claimant’s arrest “was an error by the department of motor vehicles” (Hoffner Affirmation, Exhibit D). Claimant’s sworn statement further asserts that his driving privileges should not have been suspended due to an “unpaid ticket of an unregistered vehicle ... as my car was registered in the state of Florida and all papers were current” (id.). These conclusory assertions do not establish claimant’s entitlement to judgment as a matter of law.

The affirmation of claimant’s attorney is not based upon his personal knowledge, and thus, it does not provide competent evidentiary support for the motion (see Chiarini v County of Ulster, 9 AD3d 769, 770 [3d Dept 2004]; Ladd v Coldwell Banker, 167 AD2d 676, 677 [3d Dept 1990]). While an attorney’s affirmation may be adequate when the motion for summary judgment rests upon documentary evidence such as deeds, contracts, or deposition testimony (see Shortt v Chandler, 135 AD2d 932, 933 [3d Dept 1987]; see also Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Cerulean Land Developers Corp. v Colon Development Corp., 144 AD2d 615, 616 [2d Dept 1988]; Comptroller of State of N.Y. v Gards Realty Corp., 68 AD2d 186, 188-189 [2d Dept 1979]), the documents submitted as exhibits to counsel’s affirmation do not, standing alone, make out a prima facie case of negligence by the DMV. Accordingly, claimant’s submission in support of his motion for summary judgment does not meet claimant’s prima facie burden on the motion and thus, it is

ORDERED, that Motion No. M-76082 is DENIED, and it is further

ORDERED, that Claim No. 114951 remains on the calendar for a trial of liability and damages on February 26, 2009 at 10:30 a.m.

February 3, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Verified Claim No. 114951, filed March 10, 2008;

(2) Verified Answer, filed April 14, 2008;

(3) Notice of Motion for Partial Summary Judgment, dated January 8, 2009;

(4) Affirmation of Steven A. Hoffner, Esq., dated January 7, 2009, with Exhibits A-D.