Paley V. State of new york, #2000-015-022, Claim No. None, Motion No. M-61221

PALEY v. STATE OF NEW YORK, #2000-015-022, Claim No. None, Motion No. M-61221
Synopsis
A person arrested because of false information concerning his or her driver's license negligently supplied by the Department of Motor Vehicles to the arresting officer does not have a viable cause of action in negligence against the State.
Case Information

UID:	2000-015-022
Claimant(s):	HELENE B. PALEY
Claimant short name:	PALEY
Footnote (claimant name) :
Defendant(s):	THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	None
Motion number(s):	M-61221
Cross-motion number(s):
Judge:	FRANCIS T. COLLINS
Claimant’s attorney:	Alan D. Levine, Esquire
Defendant’s attorney:	Honorable Eliot Spitzer, Attorney General By: Susan J. Pogoda, Esquire Assistant Attorney General
Third-party defendant’s attorney:
Signature date:	April 6, 2000
City:	Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The application of movant for an order permitting the service and filing of a late claim pursuant to Court of Claims Act § 10(6) is denied. The proposed claim alleges that movant switched her automobile insurance to the New York Central Mutual Fire Insurance Company on April 14, 1998 and that the insurer notified the Department of Motor Vehicles (DMV) of the change within fourteen days of the effective date of the new policy. On July 17, 1998, DMV sent movant a notice informing her that her automobile insurance had been terminated on June 26, 1998. On July 18, 1998, DMV sent movant a notice that her insurance had not been terminated. On July 21, 1998, movant received a notice from DMV that her driver's license had been suspended because her policy of insurance with Auto Ins. Co. of Hartford had been terminated on April 14, 1998. Movant's insurance broker sent a letter to the Division of Motor Vehicle Financial Security on July 27, 1998, advising that movant had liability coverage with the New York Central Fire Insurance Company with the effective dates of April 14, 1998 through April 14, 1999. It is alleged that DMV negligently failed to rescind the suspension of movant's operator's license.

On December 29, 1999, movant was stopped by a New York City police officer for making an illegal U-turn and the officer learned that movant's license was suspended upon running a check of her driver's license with DMV. Movant was arrested for driving with a suspended license and incarcerated. The charge was dismissed on December 30, 1999. Movant retained her attorney on January 7, 2000 and this motion for late claim relief was served on February 9, 2000. The State opposes the motion arguing that the proposed claim lacks merit, movant has not demonstrated a reasonable excuse for her delay in serving and filing a claim, and movant has an adequate remedy at law against her insurance broker and insurance company.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

This Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965) and the statutory factors are not exhaustive or one factor controlling (Scarver v State of New York, 233 AD2d 858). The most important factor is whether the potential claim has merit as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The proposed claim seeks to recover upon a cause of action for negligence. Clearly, the three year negligence Statute of Limitations set forth in CPLR § 214 had not expired at the time that this motion was made. However, it does not appear to the Court that late claim relief was necessary at the time the motion was served as 90 days had not yet expired from the accrual of the claim. A "claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Augat v State of New York, 244 AD2d 835, 836). Here, movant had no ascertainable damages arising from the alleged negligence of DMV until she was arrested on December 29, 1999. Movant's claim accrued upon the date of her arrest and pursuant to Court of Claims Act § 10 (3) she had until March 28, 2000 to serve and file a claim or serve a notice of intention upon the Attorney General. Therefore, the relief sought by the motion was unnecessary at the time the motion papers were served. However, since the 90 day period from the accrual of the claim has now expired the Court will decide the motion.

With respect to the existence of a valid excuse for failure to timely file a claim, the motion record demonstrates that movant's counsel did not simply serve and file a claim because he was unaware of the law governing the time when a claim accrues in this Court. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, ____ AD2d ____, 697 NYS2d 278). The excuse factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Employees of DMV clearly had notice of the events giving rise to the claim within 90 days of its accrual as they generated both the inaccurate information that led to the movant's arrest and the corrected information that led to the dismissal of the criminal charge. More importantly, the documentary history giving rise to the proposed claim remains available for review by the defendant thus negating any prejudice to the State in its ability to defend the claim (Remley v State of New York, 174 Misc 2d 523, 524). The factors of notice, opportunity to investigate and lack of prejudice to the State weigh in favor of movant.

It is upon the issue of potential merit that the motion fails. In the case of Williams v State of New York, 90 AD2d 861, the Third Department held that a person arrested as the result of inaccurate information given by DMV to an arresting officer does not have a negligence cause of action against the State based upon the conduct of DMV. The holding of Williams upon the viability of a negligence cause of action has not been overruled and remains binding upon this Court requiring a determination that the proposed claim lacks merit (Johnson v State of New York, 166 Misc 2d 333; Islam v State of New York, Motion No. M-58551, filed March 25, 1999, J. Collins; Lombardo v State of New York, Claim No. 99954, Motion No. M-60183, filed October 27, 1999, J. Collins). Movant has failed to demonstrate that the proposed claim is potentially meritorious.

As to the last factor, it appears that movant has another viable remedy in Supreme Court.

A review of all of the factors, especially the lack of merit, requires the denial of the motion.

April 6, 2000

Saratoga Springs, New York

HON. FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

Notice of motion dated February 7, 2000;

Affirmation of Alan D. Levine dated February 7, 2000, with exhibits;

Affirmation in opposition of Susan J. Pogoda dated March 6, 2000, with exhibit.