Opinion
# 2011-040-049 Claim No. 117987 Motion # 2011-040-049 Claim No. M-79043 # 2011-040-049 Claim No. M-79723
09-12-2011
GOLL v. STATE OF N.Y. N.Y.S. DEPT. OF MOTOR VEHICLES,
Synopsis
Claimant's Motion: (1) for permission to file a late claim pursuant to Court of Claims Act § 10(6) denied; (2) to dismiss four affirmative defenses denied in part and granted in part; (3) for a default judgment denied.
State's Motion to amend its answers denied in part and granted in part. Case information
UID: 2011-040-049 Claimant(s): GERALD GOLL Claimant short name: GOLL Footnote (claimant name) : STATE OF N.Y. Defendant(s): N.Y.S. DEPT. OF MOTOR VEHICLES Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117987 Motion number(s): M-79043, M-79723 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Robert K. Fischl, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas R. Monjeau, Esq., AAG Third-party defendant's attorney: Signature date: September 12, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) 2011-040-049A Decision
This decision concerns three motions, which are interrelated and will be determined together. For the reasons set forth below: (1) the application of Gerald Goll to serve and file a late claim pursuant to Court of Claims Act § 10(6) (part of Motion No. M-79043) is denied; (2) Claimant's motion to dismiss the fourth, sixth, seventh and eighth affirmative defenses raised by the Defendant in its Verified Answer (filed March 10, 2010) to Claim No. 117987 (part of Motion No. M-79043) is granted in part and denied in part; (3) the State's motion to amend its Answers to Claim Nos. 117987 and 119083 (Motion No. M-79723) is denied in part and granted in part; and (4) Claimant's cross-motion for a default judgment against the State of New York on Claim No. 119083 (Cross-Motion No. CM-79816) is denied.
The Court sets forth the complicated chronological history regarding these two Claims and the related motions.
On February 4, 2010, the Claimant, appearing pro se, filed a document with the Clerk of the Court entitled "Notice of Claim." In Court of Claims practice, there is no "Notice of Claim." There is a Notice of Intention to File a Claimand a Claim. The Clerk of the Court accepted the document as a Claim and assigned it Claim No. 117987. The Claim alleges that, on November 4, 2009 at 10:20 p.m., Claimant was arrested in Queens, New York, for driving with a suspended New York driver's license. Claimant asserts that he is a resident of New Jersey and obtained a valid New Jersey driver's license upon turning over his New York driver's license. Claimant asserts in the Claim that he was falsely arrested, unlawfully imprisoned, and maliciously prosecuted as a result of the State's negligence in reporting that his New York driver's license was suspended.
Which is served upon the Defendant and, if timely and properly served, extends one's time to serve and file a Claim.
On February 4, 2010, it appears that Mr. Goll served upon the State two separate "Notice[s] of Claim," (see Exs. A and B attached to Affirmation of Thomas R. Monjeau, Esq., in Support of State's Motion No. M-79723 to Amend its Answers), one of which is the same document that was filed with the Court and assigned Claim No. 117987, except that the copy served upon Defendant appears to fail to state the time and date when the Claim accrued (see Ex. B, ¶ 4 attached to Monjeau Affirmation). No document corresponding to the other "Notice of Claim" served upon Defendant (see Ex. A attached to Monjeau Affirmation) was filed with the Court.
On March 8, 2010, the State served a Verified Answer to Claim No. 117987 upon Claimant. The Verified Answer was filed with the Clerk of the Court on March 10, 2010.
On May 6, 2010, the Clerk of the Court received a Notice of Appearance by Robert K. Fischl, Esq., appearing as counsel on behalf of Mr. Goll.
On October 25, 2010, Mr. Goll, by his counsel, Mr. Fischl, filed another "Notice of Claim" with the Clerk of the Court. That "Notice of Claim" listed the State of New York, the New York State Department of Motor Vehicles, Nassau County, Nassau County Parking and Violations Bureau, the City of New York and the City of New York Police Department as named defendants. The Court notes that the Court of Claims has jurisdiction over the State of New York and certain public benefit corporations. The Court has no jurisdiction over either New York City and its agencies and departments, or the County of Nassau and its agencies and departments. The document also was accepted by the Clerk of the Court as a Claim and was assigned Claim No. 119083. That "Notice of Claim" was served upon Defendant on October 25, 2010 (Ex. D attached to Monjeau Affirmation in Support of Motion No. M-79723). Claim No. 119083 asserts that, as a result of the State's improper suspension of Claimant's New York driving privileges, Claimant was the victim of false arrest, illegal detention, illegal search and seizure, denial of his civil rights, denial of his New York State Constitutional rights, unlawful imprisonment, false prosecution, and denial of his liberty, all as a result of an arrest on November 4, 2009 at approximately 10:00 p.m. by New York City Police Officers. Claim No. 119083 relates to the same incident as the previously filed Claim No. 117987, but includes several additional causes of action.
On October 27, 2010, Claimant served upon Defendant a Notice of Motion and filed it with the Clerk of the Court on November 1, 2010 (Motion No. M-79043). Claimant's motion sought: (1) permission to file a late Claim pursuant to Court of Claims Act § 10(6); and (2) dismissal of the fourth, sixth, seventh and eighth affirmative defenses contained in the State's Verified Answer to Claim No. 117987 filed in March 2010. Motion No. M-79043 was originally returnable on November 10, 2010. It was adjourned twice at the State's request and once at Claimant's request, with the last return date of January 12, 2011. The proposed Claim attached to Claimant's motion is a copy of Claim No. 117987.
On November 2, 2010, the State served what was captioned as a Verified Answer to Claim No. 117987 upon Claimant and filed it with the Clerk of the Court on November 3, 2010. In that Answer, the State raised four affirmative defenses. As noted above, Defendant previously had served and filed a Verified Answer to Claim No. 117987 in March 2010.
Mr. Fischl, in his Reply Affirmation to Motion No. M-79043, filed with the Clerk of the Court on January 6, 2011, states, in paragraph 9:
9. Claimant notes that Defendant The State of New York has not answered the October 25th, Notice of Claim [Claim No. 119083] nor has there been any request from the Defendant for an extension of time to answer.
On March 10, 2011, the Court held a telephone conference with the parties regarding the two Claims and Motion No. M-79043. At the conference, it was agreed that the State would move to amend the caption to its November 2010 Answer. Claimant's counsel indicated he would then make a cross-motion with respect to the State's motion. The Court adjourned Motion No. M-79043 until the new motions were received and stated that all motions would be returnable on the same date.
On April 8, 2011, the State served upon Claimant a Notice of Motion and filed it with the Clerk of the Court that same day (Motion No. M-79723). Defendant's motion sought leave pursuant to CPLR 3025: (1) to amend the caption to its Verified Answer served and filed in March 2010 to add a reference to Claim No. 117987 to which it relates; and (2) to amend the caption to its Verified Answer served and filed in November 2010 to amend the reference from Claim No. 117987 to Claim No. 119083 in order to correct "a typographical error" (Affirmation of Thomas R. Monjeau, Esq., in Support of State's Motion No. M-79723, ¶ 11).
On May 8, 2011, Claimant served upon the State a Notice of Cross-Motion and filed it with the Clerk of the Court on May 10, 2011 (Cross-Motion No. CM-79816). Claimant's Cross-Motion: (1) sought a judgment on default pursuant to CPLR § 3215(a) with respect to Claim No. 119083; and (2) opposed Defendant's Motion No. M-79723.
By Daily Report, dated May 11, 2011, the Court set the return date for the three pending motions (Nos. M-79043, M-79723 and CM-79816) for July 13, 2011. The Court directed that answering papers be submitted on or before July 6, 2011 and reply papers, if any, be submitted on or before July 13, 2011.
Claimant's counsel filed an Affirmation in Reply concerning Cross-Motion No. CM-79816 with the Clerk of the Court on July 22, 2011. The affirmation is dated July 20, 2011 and was served upon Defendant on that date. As it was not submitted by the July 13, 2011 motion return date, as directed by the Court's May 10, 2011 Daily Report, the Court has not considered Claimant's Reply Affirmation.
The Court will first address the State's Motion No. M-79723 to serve and file Amended Answers to both Claim No. 117987 and Claim No. 119083 pursuant to CPLR 3025.
Leave to amend a pleading should be freely given upon such terms as are just (CPLR 3025[b]), absent prejudice or surprise, and so long as such pleadings are not devoid of merit (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]).
With regard to Claim No. 117987, the State's proposed Amended Answer is attached to its Motion No. M-79723 as Exhibit F. It is the same as the Answer served on Claimant and filed with the Clerk of the Court in March 2010. Therefore, the Court finds the Amended Answer to Claim No. 117987 not to be necessary, and the State's Motion to Amend its Answer to Claim No. 117987 is denied.
The Court now addresses the State's request to amend its Answer dated November 2, 2010. The State's counsel, Thomas R. Monjeau, Esq., in his Affirmation submitted in support of the State's Motion No. M-79723, avers that:
4. I was advised by Mr. Fischl that he considered the State in default of answering his claim dated October 1, 2010 (Exhibit D) which was served on this office on October 25, 2010. I was confused by his statements and position because the State filed and served an answer on November 2, 2010 (Exhibit E) which was obviously filed in response to the "Notice of Claim" served by Mr. Fischl on October 25, 2010 (Mr. Fischl mis-labeled the pleading he prepared, since there is no such pleading as a "Notice of Claim" in the Court of Claims).
5. I was further confused when Mr. Fischl denied receiving an answer to this claim, until he eventually admitted in our conference that he did receive the answer, but that since i[t] had the incorrect claim number, he apparently considered it to be another answer to his client's first pro se claim.
6. After it became clear that the claimant's position was that the State[']s answer dated November 2, 2010 was not an answer to his October 1, 2010 claim, I proposed that we stipulate to correct the simple error of placing the wrong claim number on the answer, by putting the correct [claim number] on the said answer. Even though this would not have constituted any substantive change to the answer whatsoever, the claimant and/or his attorney refused to do so. Consequently, I bring this motion to correct a simple error on the pleading.
In opposition to the State's Motion No. M-79723 and in support o Claimant's Cross-Motion No. CM-79816, Mr. Fischl states in his Affirmation:
7. Although the State of New York's March 8, 2010 Answer contained no claim number, the Answer obviously referred to the pro se claim filed by Mr. Goll as that was the claim at the time of the Answer. The State of New York's November 2, 2010 Answer had thereon a specific claim number, 117987, the number of the original claim.
Further, in the State's opposition to the claimant's motion for late filing from December 2010, the Defendant itself made specific reference to the fact that the portion of claimant's motion seeking to dismiss defenses must be referring to the Defendant's March 8, 2010 Answer rather than the Defendant's November 2, 2010 Answer.
Clearly, the direct and unambiguous implication is that the November 2, 2010 Answer was meant to amend and replace the Defendant's March 8, 2010 Answer with respect to the original claim.
In fact, what Mr. Monjeau stated in his Affirmation submitted in opposition to Claimant's Motion for Permission to file a Late Claim (Motion No. M-79043) was that:
39. As to the claimant's motion to dismiss or strike the defendant's affirmative defenses numbered "fourth", "sixth", "seventh" and "eighth", first of all, I must assume that the claimant refers to the [affirmative defenses] contained in the verified answer dated March 8, 2010, since a second verified answer dated November 2, 2010, was filed in response to what appears to be the actual claim, which served on this office on October 25, 2010.
Thus, the Court cannot accept Claimant's argument that "the direct and unambiguous implication is that the November 10, 2010 Answer was meant to amend and replace Defendant's March 8, 2010 Answer with respect to the original claim." Rather, it appears to the Court that, at the time he submitted his affirmation, Mr. Monjeau considered Claim No. 119083 served upon Defendant in October 2010 to be "the actual" Claim and the document entitled "Notice of Claim" served in February 2010 to be a Notice of Intention to File a Claim, even though it had been assigned Claim No. 117987 and a Verified Answer to it was served and filed in March 2010.
Section 206.7(b) of the Uniform Rules for the Court of Claims provides:
(b) Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it. Where a response to an amended or supplemental pleading is required, it shall be made within 40 days after service of the amended or supplemental pleading to which it responds.
In Court of Claims practice, an answer cannot be amended more than 40 days after its service without permission of the Court. The November 2010 Answer was served and filed some eight (8) months after the March Answer, well beyond the 40-day period for amending a pleading without leave of the Court. Thus, it cannot serve, as Claimant posits, to amend and replace the March 2010 Answer. Moreover, it was not captioned as an Amended Answer.
In Tomlinson Bros. Ltd. v State of New York (15 AD2d 692 [3d Dept 1962], affg 26 Misc 2d 488 [Ct Cl 1961]), the Appellate Division Third Department held that the allegations of a notice of intention and claim are decisive and that the title or caption of the pleadings is not conclusive. Where there is no question as to who the real party defendant is and as to what the claim relates, a mere nominal irregularity should be disregarded (id. at 693). Likewise, in Carle v Tufo (Ct Cl, Claim No. 83332, Motion No. M-47531, July 12, 1993), Judge Louis C. Benza stated, "as in Tomlinson (id.), upon a reading of both the notice of intention and the claim, there is no question as to who the real party defendant is" and, thus, the Court should disregard as a nominal irregularity, the naming of the chairman of the public authority defendant in the caption of the Claim rather than the authority itself.
In the present circumstance, two Claims were filed with the Clerk of the Court, Claim No. 117987 in February 2010 and Claim No. 119083 in October 2010, and two Verified Answers, both captioned Goll v State of New York, Claim No. 117987, were filed in March 2010 and November 2010, respectively (see Exs. C and E attached to State's Motion No. M-79723). The Court concludes that the November 2010 Verified Answer was an Answer to Claim No. 119083 despite the fact that it is improperly captioned as an Answer to Claim No. 117987. Claim No. 117987 already had been answered by the March 2010 Answer. Defendant's November 2010 Answer is not labeled "Amended Answer," and the State's time to serve and file an Amended Answer to Claim No. 117987 without leave of Court had long expired. In addition, the November 2010 Answer was served within a few days after Claim No. 119083 was served upon Defendant and filed with the Clerk of the Court in October 2010.
Apparently three (3) "Notice[s] of Claim" were served upon Defendant - two in February 2010 and the third in October 2010.
Based upon all of the foregoing, the Court concludes that the State's November 2010 Answer is an Answer to Claim No. 119083 that was improperly captioned with Claim No. 117987. The Court finds the improper Claim number contained in the caption to be a nominal irregularity and further determines that it should be disregarded.
The Court grants the State's motion to amend its Verified Answer to Claim No. 119083 as set forth in Exhibit G attached to the State's motion papers. The State is to serve and file the Amended Verified Answer within 20 days of the date of the filing of this Decision and Order.
Claimant's Cross-Motion No. CM-79816 for a default judgment relating to Claim No. 119083 pursuant to § CPLR 3215(a) is denied, the Court having concluded that Defendant did appear and serve a Verified Answer to that Claim in November 2010.
The Court next turns to that portion of Claimant's Motion No. M-79043 for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). For the reasons set forth below, that application is denied.
Attached to Claimant's Motion as Exhibit 1 is a copy of Claim No. 117987, which, for purposes of this motion, the Court will consider to be the proposed Claim. Based upon a review of all the papers submitted, it is asserted that Claimant has been a resident of the State of New Jersey since 2005 but that, prior to that time, he was a resident of Nassau County, New York. It is asserted that, on November 4, 2009, Claimant was driving his motor vehicle in Queens County, New York, when he was stopped by a New York City police officer and was subsequently arrested "based upon multiple suspensions of [Claimant's] privileges to drive in the State of New York" (Affidavit of Gerald Goll in Support of Motion No. M-79043, ¶ 7). He was charged with aggravated unlicensed operation of a motor vehicle in the second degree, a violation of New York State Vehicle and Traffic Law (hereinafter VTL) § 511(2)(a) and a violation of VTL § 375(2)(a)[1] alleging that Claimant's headlights were not operating or were not turned on (id., ¶ 25).
Claimant asserts that the four suspensions of his New York State driving privileges were imposed without him being notified. He alleges that, while the suspensions were imposed in 2008 and 2009, the underlying traffic tickets were between nine (9) and 15 years old, had been fully resolved at the Nassau County Traffic and Parking Violations Agency, yet, their resolution had not been properly recorded (id., ¶¶ 41 and 42). He further asserts that none of the traffic tickets were outstanding when he surrendered his New York State driver's license on August 10, 2005 in order to obtain his New Jersey driver's license (id., ¶ 44). Claimant asserts that the New York State Department of Motor Vehicles (hereinafter "DMV") negligently suspended his driving privileges in New York State resulting in his false arrest and imprisonment from November 4, 2009 to November 5, 2009.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts causes of action for false arrest (CPLR § 215[3], a one-year statute of limitations) and for negligence (CPLR 214[5], a three-year statute of limitations). Those causes of action accrued on the date Claimant was released from custody, November 5, 2009. Thus, the respective statute of limitations periods had not yet expired on November 1, 2010 when Claimant's Motion No. M-79043 was filed with the Clerk of the Court.Claimant's counsel asserts that the only causes of action for which Claimant is seeking permission to late file are those that were stated in Claim No. 117987 in February 2010 (see Reply Affirmation of Robert K. Fischl, Esq. to Motion No. M-79043, ¶ 8). He asserts that Claimant's other causes of action did not accrue until September 13, 2010, when the criminal matter against Claimant in Queens County was dismissed (id.). Counsel asserts that the Claim for those causes of action was timely served and filed in October 2010 (id.; see Claim No. 119083).
The motion was served upon defendant on October 27, 2010.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Here, Claimant has failed to proffer an excuse. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together.
Defense counsel acknowledges that the State had constructive notice of the essential facts, had an opportunity to investigate and that Defendant will not be substantially prejudiced should the motion be granted. Thus, the Court concludes those factors weigh in Claimant's favor.
The fifth factor to be considered is whether Claimant has another remedy available. It appears that he does have an alternate remedy. He could bring an action in the appropriate forum against the defendants he has named in Claim No. 119083 over whom this Court lacks jurisdiction, i.e., Nassau County, the Nassau County Traffic and Parking Violations Agency, the City of New York and the New York City Police Department.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Claimant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).
At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of Claimant. Thus, the Court accepts the allegation that DMV negligently suspended Claimant's driving privileges in New York. Defendant argues, however, that the proposed Claim lacks the appearance of merit, even if DMV was negligent in performing its duties. Defendant asserts that it is immune from liability absent a special relationship with Claimant.
When the State engages in proprietary activities (endeavors akin to those ordinarily performed by private enterprises) it is subject to ordinary tort liability (Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Metz v State of New York, 86 AD3d 748 [3d Dept 2011]; Kochanski v City of New York, 76 AD3d 1050 [2d Dept 2010]). "[T]he State's motor vehicle record-keeping activity," on the other hand, is "performed as part of its governmental function" (Ford Motor Credit Co. v State of New York, 133 AD2d 980, 981 [3d Dept 1987], in part, quoting Abruzzo v State of New York, 84 AD2d 876, 877 [3d Dept 1981]). The State's potential liability in such cases depends upon whether or not the governmental action being performed is discretionary or ministerial in nature (Signature Health Ctr., LLC v State of New York, 28 Misc 3d 543, 556 [Ct Cl 2010]). Discretionary acts involve the "exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Tango v Tulevech, 61 NY2d 34, 41 [1983]). Discretionary governmental acts "may never be a basis for liability, while ministerial [governmental] acts may support liability only where a special duty is found . . . [that is] owed to the [claimant], apart from any duty to the public in general" (McLean v City of New York, 12 NY3d 194, 202-203 [2009]; see Lauer v City of New York, 95 NY2d 95, 99-100 [2000]; Pearson v State of New York, Ct Cl, Claim No. None, Motion No. M-77265, January 15, 2010, Collins, J. [UID No. 2010-015-107]).
The transmission by the State of information contained in DMV records constitutes a ministerial act (see Nuzzolo v State of New York, Ct Cl, Claim No. 115827, Motion No. M-78495, October 14, 2010, Collins, J. [UID No. 2010-015-179]; Sankara v State of New York, Ct Cl, Claim No. 102035, Motion No. M-63054, June 5, 2001, Sise, J. [UID No. 2001-028-0534]). It is a claimant's "heavy burden," however, to establish that a special relationship or duty exists when negligence is alleged concerning the performance of a ministerial act (Pelaez v Seide, 2 NY3d 186, 198- 199, n.8 [2004]; see Lewis v State of New York, Ct Cl, Claim No. None, Motion No. M-78101, May 27, 2010, Milano, J. [UID No. 2010-041-028]; Hajdari v State of New York, Ct Cl, Claim No. 117339, March 9, 2010, Scuccimarra, J. [UID No. 2010-030-005]). As a result of that heavy burden, the Court of Appeals has dismissed, as a matter of law, most such claims that hinge upon the existence of a special relationship/duty (Pelaez v Seide, 2 NY3d 186, supra at 199, n.8).
"A special relationship can be formed in three ways: (1) when the [governmental entity] 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 [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation." (McLean v City of New York, 12 NY3d 194, supra at 199, quoting Pelaez v Seide, 2 NY3d 186, supra at 199- 200 [citation omitted]).
The Court concludes that Claimant has failed to establish the existence of a special relationship between himself and the State separate and apart from that owed to the public generally, as set forth above. In the absence of a special duty, there can be no appearance of merit (see Nuzzolo v State of New York, Ct Cl [UID No. 2010-015-179], supra). Moreover, Claimant argues that the actions of DMV's employees in sending Claimant notice of the suspension of his New York State driving privileges to an outdated address was a deliberate discretionary decision, not a ministerial act (Robert K. Fischl, Esq., Reply Affirmation in Opposition to Motion No. M-79043, ¶¶ 6 and 7). If Claimant is correct that the State's action was discretionary, then his Claim truly is without the appearance of merit because, as noted above, discretionary governmental action may not be a basis for liability (see McLean v City of New York, 12 NY3d 194, supra).
In accordance with the foregoing, the Court finds that the preponderance of factors considered do not weigh in Claimant's favor. He failed to offer a reasonable excuse, has a possible alternate remedy and has failed to establish that his proposed Claim has the appearance of merit. His motion for permission to file a Claim late, therefore, is denied.
Finally, the Court turns to that portion of Claimant's Motion No. M-79043 that seeks to dismiss the fourth, sixth, seventh and eighth affirmative defenses raised in the State's Verified Answer to Claim No. 117987. For the reasons set forth below, that application is granted in part and denied in part.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
In his Affirmation, submitted in opposition to Claimant's Motion No. M-79043, Defense counsel advises the Court that he is withdrawing the fourth affirmative defense raised in the Verified Answer, that the Claim is defective as it is unverified (id., ¶ 40). The Court deems the defense withdrawn and, thus, Claimant's motion as to that defense is denied as moot.
The sixth affirmative defense asserts that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, State of New York, as the Claim is untimely, in that neither the Claim nor a Notice of Intention to file a Claim was served upon Defendant within 90 days of the Claim's accrual as required by Court of Claims Act §§ 10(3) and 11. If the Court were to find, upon a proper motion by Defendant, that the Claim was not timely served pursuant to the requirements of Court of Claims Act §§ 10(3) and 11, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a determination of the issue.
The seventh affirmative defense asserts that the Court lacks subject matter jurisdiction over the Claim as it was not filed with the Clerk of the Court of Claims as required by § 11(a) of the Court of Claims Act. The Court received a document entitled "Notice of Claim" from Claimant, pro se, on February 4, 2010, which the Court accepted as Claim No. 117987. The Court, therefore, finds that a Claim was filed with the Clerk of the Court and Claimant's motion to dismiss the seventh affirmative defense is granted and the defense is dismissed.
The eighth affirmative defense asserts that the Claim fails to state the date the Claim accrued as required by Court of Claims Act § 11 and, therefore, there is no proper Claim over which the Court has jurisdiction. The Court notes that Claim No. 117987 does contain a date of accrual (November 4, 2009). The Court further notes, however, that that information is written in blue ink and the remainder of the Claim, except for Claimant's signature, is written in black ink. As noted above, Defense counsel attached a copy of the Claim that was served upon Defendant which appears to fail to state the time and date when the Claim accrued (see Ex. B attached to Monjeau Affirmation in Support of State's Motion to Amend its Answers [Motion No. M-79723]). If proved, this defense could result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
Therefore, as set forth above, Claimant's motion to dismiss the fourth affirmative defense is denied as moot, as the State has withdrawn that defense, and denied as to the sixth and eighth affirmative defenses. It is granted as to the seventh affirmative defense.
September 12, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on (1) Claimant's Motion No. M-79043 for permission to file a late claim and to dismiss certain affirmative defenses; (2) Defendant's Motion No. M-79723 to Amend its Answers; and (3) Claimant's Cross-Motion No. CM-79816 for a Default Judgment on Claim No. 119083:
Papers Numbered
Motion No. M-79043
Notice of Motion, Affidavit,
Affirmation & Exhibits Attached 1
Affirmation in Opposition &
Exhibits Attached 2
Reply Affirmation 3
Motion No. M-79723
Notice of Motion, Affirmation &
Exhibits Attached 1
Cross-Motion No. CM-79816
Notice of Cross-Motion,
Affirmation in Opposition to M-79723
and in Support of Cross-Motion &
Exhibits Attached 1
Affirmation in Opposition to Cross-Motion 2
Filed Papers: Claim Nos. 117987 & 119083, Answers to Claim Nos. 117987 & 119083.