New York State Court of Claims

New York State Court of Claims
NUZZOLO v. THE STATE OF NEW YORK, # 2010-015-179, Claim No. 115827, Motion No. M-78495

Synopsis

Claimant alleged he was arrested and wrongfully confined for a ministerial error of the DMV. Court granted defendant's motion for summary judgment dismissing claim as no special relationship existed. Nor did the alleged due process violation of DMV in failing to properly notify claimant that his driving privileges were suspended give rise to a constitutional tort cause of aciton.

Case information

UID: 2010-015-179
Claimant(s): STEPHEN NUZZOLO
Claimant short name: NUZZOLO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115827
Motion number(s): M-78495
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Bournazos & Matarangas, P.C.
By: Steven Bournazos, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 14, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.

Claimant alleges that on June 30, 2008(1) as he was entering the Lincoln Tunnel "he was illegally seized, falsely arrested, unlawfully detained, illegally arrested, falsely charged and imprisoned which violated his rights under the Constitution and Laws of the State of New York and was also subjected to the common law torts of false imprisonment, false arrest and malicious prosecution all as a result of the negligence of THE STATE OF NEW YORK and THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES" (defendant's Exhibit D, claim, 1).

The following facts are not in dispute. Claimant was licensed to operate a motor vehicle in the State of New Jersey. He was convicted in New York of a traffic violation in 2000 at which time he resided at 19 Kimberly Court, Ramsey, New Jersey. He subsequently received tickets for traffic violations in New York on December 3, 2005 and February 23, 2006 for which his address was indicated on the front of the tickets as 29 Fulton Street, Weehawken, New Jersey. On April 1, 2006 claimant pled not guilty to the February 23, 2006 charge and, in doing so, indicated his address on the ticket as 160 W. 71st Street, New York, New York (claimant's Exhibit A). A hearing was scheduled before the Traffic Violation Division (TVD) of the DMV and notice of the hearing was provided to the claimant at 160 W. 71st Street, New York, New York (claimant's Exhibit C). Claimant received another ticket on February 26, 2006. An address of 29 Rolling Views Drive, West Patterson [sic], New Jersey is stated on the face of the ticket (see claimant's Exhibit D; defendant's Exhibit A, affidavit of Carol Stone, 8). On March 30, 2006 claimant was ticketed for improper cell phone use and notification regarding payment was sent to the claimant at the updated address he previously provided to the TVD, 160 W. 71st Street, New York, New York (defendant's Exhibit J-1, ticket for improper cell phone use on March 30, 2006, and letter from DMV dated August 29, 2006 sent to proper address). By letter dated June 1, 2006, the DMV notified claimant that he was required to pay a Driver Responsibility Assessment ( DRA) based upon the accumulation of more than 6 points on his driving record in an 18 month period (Vehicle and Traffic Law 1199, 503 [4]; claimant's Exhibit E). The letter was sent to claimant's former address at 19 Kimberly Court, Ramsey, New Jersey. Thereafter, a Suspension Order dated July 16, 2006 was sent to the claimant, at the same address, advising him that his driving privileges in New York would be suspended indefinitely effective August 15, 2006 for failing to pay the DRA (claimant's Exhibit F). Claimant was arrested and detained by the NY/NJ Port Authority Police on June 30, 2008 for driving with suspended operating privileges in violation of VTL 511. Claimant was confined at the Port Authority Police Station until his release on July 1, 2008 (defendant's Exhibit H, claimant's response to interrogatories nos. 2, 7 and 9) .

In support of its motion for summary judgment, defendant submits three affidavits from DMV employees. The first is from Carol Stone, a Principal Clerk in the TVD. Ms. Stone explains in her affidavit that a DRA was imposed on the claimant due to the accumulation of more than six points on his driver's record in an eighteen month period (defendant's Exhibit A, Stone Affidavit, 5). When claimant failed to pay the DRA, his driving privileges in New York were suspended on August 15, 2006.(2) According to the affidavit of Wendy Ayala-Nieves, a Driver Improvement License Examiner in the Driver Improvement Unit of the DMV, both the notice of the DRA and the license suspension Order were sent to the claimant at the address established for him in November 2000 - 19 Kimberly Court, Ramsey, New Jersey (defendant's Exhibit B, 9, 12). Ms. Stone avers that while the TVD directs its correspondence to the address provided on the tickets, they do not substitute that information for the address included on the official DMV record (defendant's Exhibit A, Stone affidavit, 9). As a result, the DRA notice and the Order suspending claimant's driving privileges were sent to the claimant at 19 Kimberly Court, Ramsey, New Jersey, the official DMV address for the claimant (defendant's Exhibit B, affidavit of Ayala-Nieves, 9). Ms. Ayala-Nieves explains that "once a licensee . . . crosses the threshold required for the imposition of a DRA . . . the DMV computer system automatically generates and sends a notice 'by first class mail to the address of such person on record with the department' (Vehicle & Traffic Law 503 [4] [C]). Accordingly, the claimant's DRA notice and suspension order were sent to 19 Kimberly Court, Ramsey, New Jersey 07446, as mandated by statute, because this was his then official address as maintained by DMV on his license record" (defendant's Exhibit B, Ayala-Nieves affidavit, 12; see also defendant's Exhibit A, Stone affidavit, 13).

The third affidavit submitted in support of the motion is that of Steven Weatherwax, IT Specialist 3 in the DMV. Mr. Weatherwax explains that the TVD database is separate from the database utilized to generate the DRA. Whereas the TVD database utilizes the address provided on the ticket, the DRA is implemented by an automated process utilizing the address established in the DMV license system. For out-of-state licensees, this is the address first established in the system unless DMV is notified otherwise. Thus, while the TVD database may reflect a current address for an out-of-state licensee and input from that unit may trigger the imposition of a DRA, DRA notices and suspension orders based thereon utilize a different database which is not automatically updated to reflect the current address of the out-of-state licensee.

Defendant argues that summary dismissal of the claim is required on two bases. First, defendant contends that while the issuance of the notices advising of the imposition of the DRA and the suspension of the claimant's driving privileges constitute ministerial conduct, no ministerial negligence occurred because it is the policy and practice of the DMV to establish the official DMV record address for an out-of-state operator as the address where the operator resided when he or she was first convicted of a traffic offense. Defendant contends that the burden of updating the official DMV record address rests squarely on the shoulders of the out-of-state licensee by virtue of Vehicle & Traffic Law (VTL) 250 (2) and 505. Thus, notwithstanding the claimant's notification to the TVD of his updated New York residence address, defendant contends that his failure to similarly notify another department of the DMV of this address change was the sole proximate cause of his failure to receive notice of the DRA and the suspension of his operating privileges. Alternatively, defendant argues that it is immune from liability absent circumstances giving rise to a special duty of care (citing, inter alia, McLean v City of New York, 12 NY3d 194 [2009]).

Claimant states in an affidavit submitted in opposition to the motion that he notified the DMV of both his current New York residence address and his domiciliary address in New Jersey. Notification of his current New York address was performed on April 1, 2006 by completing the reverse side of the traffic ticket issued on February 23, 2006 in which he pled not guilty to the charge indicated therein (claimant's Exhibit A). Claimant also states that although he maintained a New York residence, his "domicile was always New Jersey at 29 Rolling Views Drive Paterson New Jersey" (claimant's Exhibit I, claimant's affidavit, 4). Claimant contends that because he was a New Jersey domiciliary, he was not obligated to obtain a New York driver's license under VTL 250 (2) or report a change of address under VTL 505 (5). In any event, claimant avers that despite having been notified of both his current New York residence address as well as his New Jersey domiciliary address, DMV records were not updated to reflect either address (claimant's Exhibit I, 14; see also claimant's Exhibit A). According to claimant's counsel, the ticket issued on February 26, 2006 contained the claimant's domiciliary address at 29 Rolling View Dr., West Paterson, New Jersey "[s]o even if the NYS DMV did not update their records to reflect the 160 West 71st Street, New York address, the DRA notifications should surely have been sent to the address which was listed on the ticket which triggered the DRA" (affirmation of Steven Bournazos, Esq., 16). Claimant contends that defendant's failure to notify him of the DRA at the addresses provided resulted in the suspension of his driving privileges in New York and his arrest and confinement for driving with suspended privileges in violation of VTL 511. Claimant also contends that the DMV was required to notify New Jersey of the license suspension, which it failed to do (see VTL 516)(3) .

A DRA is imposed on "[a]ny person who accumulates six or more points on his or her driving record for acts committed within an eighteen month period . . ." (VTL 503 [4]). The notification procedures and penalty for noncompliance are set forth in VTL 503 [4] [c] as follows:

"Upon receipt of evidence that a person is liable for the driver responsibility assessment required by this subdivision, the commissioner shall notify such person by first class mail to the address of such person on file with the department or at the current address provided by the United States postal service of the amount of such assessment, the time and manner of making required payments, and that failure to make payment shall result in the suspension of his or her driver's license or privilege of obtaining a driver's license."

Defendant contends that it complied with the statutory mandate that notice be sent "to the address on file with the department" because the claimant's address in the DMV license database was established based on the first ticket he received in the State of New York. Inasmuch as the DMV database is separate and distinct from that utilized by the TVD, defendant asserts that the address on file with the DMV license database is the "official" address for the purpose of DRA notifications and suspensions for nonpayment. Defendant contends, therefore, that the notice provisions of the statute were fulfilled. The Court cannot agree.

VTL 503 (4) (c) requires that the notice and suspension order be sent to the address "on file with the department". As the name implies, the TVD is but a division of the DMV. The fact that the DMV license database is separate and distinct from the TVD database, while interesting, provides no support for the contention that the address "on file with the department" is the address on the DMV license database, not the TVD database (see People v Yount, 174 Colo. 462 [1971]). For out-of-state licensees, like the claimant here, the flaws in this procedure are obvious. The address on the DMV license database is the address taken from the oldest ticket received by the operator in the State of New York. Yet, upon the issuance of subsequent tickets, the DMV license database is not updated. In this case, the subsequently issued tickets reflected two addresses - his New York residence address at 160 W. 71st Street (claimant's Exhibits A and C) and his New Jersey domicile at 29 Rolling Views Drive, West Patterson [sic], New Jersey (claimant's Exhibit D). While the February 26, 2006 ticket which triggered the imposition of the DRA properly reflected the claimant's domiciliary address in New Jersey, notice of the DRA and the Order of suspension were sent to an address which had been entered in the DMV database from a ticket issued six years prior. The Court cannot conclude in these circumstances that the conduct of the DMV was statutorily mandated or reasonable under the circumstances.

In the Court's view, neither VTL 505 (5) nor VTL 250 support the defendant's contention that claimant's failure to update his address on the "official" DMV record was the sole proximate cause of his license suspension, arrest and confinement. While VTL 505 (5) places the onus on the licensee to notify the DMV of any address change within ten days, this section is inapplicable to out-of-state licensees (see Meza v Proud Tr. Inc., 55 AD3d 332 [2008]). Likewise, VTL 250 (2), which confers upon out-of-state licensees the privilege of operating a motor vehicle in this State, provides the following with respect to a new residents of the State:

"A nonresident entitled to operate a motor vehicle . . .as herein provided who shall become a resident of this state may operate or drive a motor vehicle . . . on the public highways of this state for a period not exceeding thirty days from the date he becomes a resident pending the obtaining of a license to operate such motor vehicle . . . in this state . . ."

As claimant correctly points out, "resident" is defined by the statute to mean domiciliary (VTL 250 [5]). The statute also provides that "[i]t shall be presumptive evidence that a person who maintains a place of abode in this state for a period of at least ninety days is a resident of this state" (VTL 250 [5]). Claimant successfully rebutted any presumption of residency through the submission of evidence that he was domiciled in New Jersey. As a result, claimant was not required to obtain a New York driver's license under 250 [2].

The undisputed facts of this case indicate that the TVD was advised of both the claimant's updated New York residence address as well as the address of his New Jersey domicile. The address contained on the ticket which gave rise to the DRA was 29 Rolling Views Drive, West Patterson [sic], New Jersey, claimant's alleged domicile address. DMV's failure to update the claimant's license record with this information may not be attributed to the claimant as neither of the statutes on which the defendant relies for a contrary conclusion apply. In these circumstances, the Court concludes that claimant's non-receipt of the DRA notice and Order suspending his driving privileges in New York was due to the DMV's failure to send the notice of the DRA and suspension Order to the address on file with the department as statutorily required (VTL 503 [4] [c]). This was not a discretionary act involving the exercise or reasoned judgment which could typically produce different acceptable results, but a ministerial act requiring "direct adherence to a governing rule or standard with a compulsory result" (Tango v Tulevech, 61 NY2d 34, 41 [1983]). In view of the fact that the February 26, 2006 ticket which triggered the issuance of the DRA notice and suspension Order reflected the proper address of the claimant's New Jersey domicile, DMV's negligence in failing to send the notice and Order to the proper address is clear. Notwithstanding this determination, however, defendant asserts that it is immune from liability absent a special relationship with the claimant.

Prior to the Court of Appeals decision in McLean v City of New York (12 NY3d 194 [2009]) courts drew a distinction between discretionary conduct, for which a municipality was immune from liability in the absence a special duty owing directly to the injured party (see e.g. Laratro v City of New York, 8 NY3d 79 [2006]; Pelaez v Seide, 2 NY3d 186 [2004]; Cuffy v City of New York, 69 NY2d 255 [1987]), and ministerial conduct for which the municipality could be subjected to liability under general tort principles (see e.g. Lauer v City of New York, 95 NY2d 95 [2000]; Lapidus v State of New York, 57 AD3d 83 [2008]; Marx v State of New York, 169 AD2d 642 [1991]; Boland v State of New York, 218 AD2d 235 [1996]; Ford Motor Credit Co. v State of New York, 133 AD2d 980 [1987]; see generally Metz v State of New York, 27 Misc 3d 1209 [A] [2010]; Signature Health Ctr., LLC v State of New York, 28 Misc 3d 543 [2010]). Cases involving DMV errors were routinely decided utilizing this analytical framework. In Ford Motor Credit Co. v State of New York (supra), for example, the Appellate Division, Third Department, specifically held that the State is not immune from liability for ministerial acts negligently performed by the DMV. Following Ford, the State's liability for DMV errors turned on whether the conduct was discretionary, in which case a special duty analysis applied, or ministerial, as to which a finding of negligence alone sufficed to impose liability (see e.g. Fontaine v State of New York, UID # 2006-015-548, Claim No.109452 [Ct Cl, October 25, 2006] Collins, J.; Lobel Fin. Corp. v State of New York, 8 Misc 3d 662 [Ct Cl 2005]; Davis v State of New York, UID # 2004-028-504, Claim No. 104493 [Ct Cl, February 3, 2004] Sise, J.; Sankara v State of New York, UID # 2001-028-0534, Claim No. 102035 [Ct Cl, June 5, 2001] Sise, J.). In McLean v City of New York (12 NY3d 194 [2009]), however, the Court of Appeals clarified that "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Id. at 203; see also Dinardo v City of New York, 13 NY3d 872 [2009]; Lewis v State of New York, 68 AD3d 1513 [2009]). Thus, not only must a claimant aggrieved by a DMV error establish that the conduct complained of was ministerial, he or she must further establish that such conduct violated a special duty owed to the individual claimant.

McLean set forth three ways in which a special duty to the claimant may arise:

" '(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation' " (Id. at 199, quoting Pelaez v Seide, 2 NY3d 186, 199-200 [2004]).

Here, claimant neither alleged in the claim nor in opposition to the defendant's motion the existence of a special duty separate and apart from that owed to the public at large (see Rollins v New York City Bd. of Educ., 68 AD3d 540 [2009]). While the express statutory mandate required notice to the claimant at the address on file with the department (VTL 503 [4] [c]), no private right of action may be fairly implied from the statute (see Hammer v American Kennel Club, 1 NY3d 294 [2003]; Carrier v Salvation Army, 88 NY2d 298 [1996]; Sheehy v Big Flats Community Day, 73 NY2d 629 [1989]; Wolfson v Glass, 301 AD2d 843 [2003]; Gain v Eastern Reinforcing Serv., 193 AD2d 255 [1993]). Nor do the facts reflect either a voluntary assumption of a duty by the DMV and the claimant's justifiable reliance thereon, or the assumption of positive direction and control in the face of a known and dangerous safety violation (see Garrett v Holiday Inns, 58 NY2d 253 [1983]). Application of the immunity standards set forth in McLean lead this Court to the conclusion that negligent performance of a ministerial function by the DMV as alleged by the claimant herein, standing alone, is an insufficient predicate for the imposition of liability requiring dismissal of the claim to the extent it asserts a negligence cause of action.

Claimant's causes of action for false arrest, malicious prosecution and wrongful confinement are also devoid of merit. To establish a cause of action for false arrest or false imprisonment it must be shown that "(1) the defendant intended to confine [claimant], (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Guntlow v Barbera, 76 AD3d 760 [2010]). Claimant alleges here that he was arrested and detained by the "NY/NJ Port Authority Police" (defendant's Exhibit H). The Port Authority of New York and New Jersey is a public authority created by compact between the two states and approved by Congress (Matter of Agesen v Catherwood, 26 NY2d 521, 524 [1970]; Unconsolidated Laws 7101 et seq.). It is not an arm or agency of the State of New York (Alexander v State of New York, 27 AD3d 273 [2006]). The State having neither arrested nor confined the claimant may not be held liable on theories of either false arrest or false imprisonment (cf. Secard v Department of Social Servs. of County of Nassau, 204 AD2d 425 [1994]).

"To obtain recovery for malicious prosecution, a [claimant] must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" (Martinez v City of Schenectady, 97 NY2d at 84). Claimant's malicious prosecution claim fails for the same reason as his false arrest and imprisonment claims. Neither the commencement of the criminal proceeding nor a continuation of the criminal proceeding was initiated by the State. Moreover, the malicious prosecution claim fails for the additional reason that the claimant is unable to establish lack of probable cause and malice. Here, the arresting officer's reasonable reliance upon the information provided by the DMV constituted probable cause for the arrest (People v Tavarez, 277 AD2d 260 [2000]; People v Clark, 227 AD2d 983 [1996]; McGuire v City of New York, 142 Fed Appx 1 [2d Cir 2005]) and no facts are alleged from which a fact finder could reasonably infer malice.

To the extent the claim alleges a violation of the Federal Constitution, it is well-settled that no claim for a violation of the claimant's federal constitutional rights is cognizable against the State in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184-185 [1996]; Monell v Department of Social Services of the City of New York, 436 US 658 [1978]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [2006]).

Finally, to the extent a cause of action for a violation of the State Constitution may be inferred from the claim, it lacks merit. It is now settled that a cause of action for a violation of the N.Y. Constitution may give rise to a tort cause of action where it is necessary to ensure the full realization of the claimant's constitutional rights (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Brown v State of New York, 89 NY2d 172 [1996]). The right is a narrow one, however, and may not be invoked where the claimant has an alternate "avenue of redress" (Martinez v City of Schenectady, 97 NY2d at 83 ; Waxter v State of New York, 33 AD3d 1180 [2006]; Bullard v State of New York, 307 AD2d 676 [2003]). In Martinez (supra) the plaintiff was convicted of possession of a controlled substance based upon evidence obtained through the issuance of an invalid search warrant. In dismissing plaintiff's cause of action for a violation of her constitutional rights (NY Const., art 1, 11 and 12), the Court of Appeals found that the exclusion of evidence illegally obtained, together with the right to appeal her criminal conviction, adequately vindicated both the private interest that citizens harmed by constitutional violations have an avenue of redress and the public interest that future violations will be deterred. Here, too, claimant had available the defense in the criminal proceeding that he was unaware of the fact that his privilege to operate a motor vehicle in the State of New York was suspended. Specifically in this regard VTL 511 (1) (a) makes it a crime for any person to "[operate] a motor vehicle upon a public highway while knowing or having reason to know that such persons . . . privilege of operating such motor vehicle in this state . . . is suspended . . ." Under the circumstances here, the availability of this defense together with the right to appeal any adverse determination sufficiently vindicates the public interest in deterring future violations and the private interest in securing adequate redress.

Based on the foregoing, the defendant's motion is granted and the claim is dismissed.

October 14, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated July 6, 2010;
  2. Affirmation of Thomas R. Monjeau dated July 6, 2010 with exhibits;
  3. Affirmation of Steven Bournazos dated July 26, 2010 with exhibits.

1. The claim filed on September 12, 2008 alleges that the claimant was arrested on July 30, 2008 (defendant's Exhibit D). The amended claim annexed as defendant's Exhibit F indicates that the claimant was arrested on June 30, 2008. The amended claim was not filed in the Office of the Clerk, however. Nevertheless, it is clear that the arrest occurred on June 30, 2008 (defendant's Exhibit H, claimant's response to interrogatory no.1).

2. While Ms. Stone also avers that claimant's driving privileges were suspended on November 22, 2006 for failing to answer a ticket he received in New York City on February 23, 2006, the motion evidence reflects that claimant ultimately answered the ticket and pled not guilty to the charge (defendant's Exhibit J-1).

3. The Court can find no support for claimant's contention that the driver license compact set forth in VTL 516 requires the State of New York to report suspensions of driving privileges - as distinct from convictions - to his home state of New Jersey (see VTL 516, art. III).