Opinion
# 2018-032-069 Claim No. 129658 Motion No. M-91846 Cross-Motion No. CM-92096
10-09-2018
LISA MARIE MOORE v. THE STATE OF NEW YORK
Lisa Marie Moore, Pro Se Hon. Barbara D. Underwood, Attorney General By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Claimant's motion to amend the claim is denied and the claim is dismissed for failure to state a cause of action as to the claim for the negligent performance of a ministerial function by the DMV. Claimant failed to allege the existence of a special duty separate and apart from that owed to the public at large and the statute at issue contained neither an express nor an implied private right of action.
Case information
| UID: | 2018-032-069 |
| Claimant(s): | LISA MARIE MOORE |
| Claimant short name: | MOORE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129658 |
| Motion number(s): | M-91846 |
| Cross-motion number(s): | CM-92096 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Lisa Marie Moore, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 9, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, filed the instant claim on May 2, 2017. The claim seeks compensation for damages sustained when the New York State Department of Motor Vehicles (DMV) failed to notify claimant that her driving privileges in the State of New York were suspended. The claim alleges one cause of action for negligence.
The claim states that, on February 20, 2017, claimant was stopped by an officer in the town of Ausable, New York, at which time claimant presented her New Jersey driver's license (Verified Claim ¶ 2 [I]-[II]). The officer then informed claimant that her driving privileges in the State of New York were suspended since 2010 (id. ¶ 2 [III]). Claimant then noticed that the printed document held by the officer listed an incorrect address for claimant (id. ¶ 2 [V]).
Following claimant's traffic stop, she contacted the DMV. The answering agent informed claimant that her driving privileges were suspended for her failure to pay a Driver Responsibility Assessment (DRA) assessed on a moving violation in January 2010 (Verified Claim ¶ 2 [VIII]). The agent then told claimant that her name and birth date were matched to an address listed in their database, which was not the same address listed on claimant's February 20, 2017 traffic ticket (id. ¶ 2 [IX]). Claimant alleges that the DMV did not have her correct address and failed to properly notify her of the DRA, resulting in her license suspension (id. ¶ 2 [XI]). She seeks damages for her airfare, legal fees, and lost income that resulted from the license suspension and the litigation that ensued after she was cited for a traffic violation in Ausable, New York.
Claimant now moves for permission to file and serve an amended claim. Defendant cross-moves to dismiss the claim on the grounds that: (1) the claim fails to state a cause of action; (2) the Court lacks jurisdiction due to claimant's failure to file the claim within 90 days of the accrual date; and (3) defendant is absolutely immune from liability for the alleged cause of action.
MOTION TO AMEND THE CLAIM Claimant filed her motion to amend the claim on February 16, 2018. The motion was assigned a return date of April 18, 2018. Thereafter, on April 11, 2018, defendant filed a cross motion to dismiss the claim, along with an opposition to claimant's motion to amend. Both motions were assigned a return date of June 20, 2018. On June 19, 2018, claimant attempted to file a notice of discontinuance of the claim. By letter dated June 21, 2018, defendant notified the Court that claimant planned to withdraw her claim and subsequently refile in order to avoid defendant's pending dismissal motion. That same day, claimant filed a letter explaining that she was recently released from the hospital and that she did not wish to withdraw her claim. Claimant also requested 30 days to respond to defendant's motion to dismiss. Although claimant's adjournment request was received one day after the June 20, 2018 return date, the Court granted claimant's request and adjourned both motions to July 27, 2018. The Court advised both parties that it would not grant any further requests for adjournments. Claimant later e-filed a proposed amended claim at 5:42 p.m. on July 27, 2018--the return date of the instant motion--allowing defendant no time to submit a response to the allegations contained therein. The next day, claimant e-filed a response to defendant's cross motion. On August 2, 2018--six days after the return date--claimant e-filed a letter to the Court explaining that she was experiencing "major personal and health issues," but did not describe the details of those issues.
The Court first notes that claimant failed to attach a proposed amended claim to her motion seeking to file and serve an amended claim. This failure alone warrants denial of the motion (Harris v State of New York, UID No. 2013-032-039 [Ct Cl, Hard, J., Sept. 3, 2013]). Moreover, as both claimant's proposed amended claim and opposition to defendant's cross motion were filed late and without a reasonable excuse, the Court declines to consider them (see Nakollofski v Kingsway Properties, LLC, 157 AD3d 960, 961 [2d Dept. 2018]; Bush v Hayward, 156 AD2d 899, 900 [3d Dept. 1989]). Accordingly, claimant's motion to amend the claim is denied.
CROSS MOTION TO DISMISS THE CLAIM
"In determining a motion to dismiss, the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept. 2011]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act §§ 10 [3], [3-b]). "A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d 294, 294 [2d Dept. 1994], lv denied 86 NY2d 706 [1995]; see e.g. Bullard v State of New York, 307 AD2d 676, 677-678 [3d Dept. 2003]).
Defendant argues that claimant's cause of action accrued in 2010. Accordingly, defendant argues that claimant's service of the claim on May 2, 2017 renders it untimely under both the Court of Claims Act and the statute of limitations applicable to negligence claims set forth in CPLR 214. The Court disagrees.
As stated above, "[a] claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d at 294). Here, the claim alleges that claimant's driving privileges have been suspended since 2010 (Verified Claim ¶ 2 [III]). To support defendant's argument, defendant points to exhibits attached to claimant's motion to amend the claim. In particular, Exhibit G, a Driver Responsibility Assessment Statement, is dated July 28, 2010 and addressed to claimant's New York State address on file with the DMV. The Statement states that the Driver Assessment Fee is due by August 27, 2010, and that if claimant fails to pay the fee, her license will be suspended. However, claimant states that she never received notice of the Driver Responsibility Assessment Statement (Verified Claim ¶¶ 2 [IV], 2 [XI]). Thus, claimant alleges that she did not know that her license had been suspended until February 20, 2017, when she was pulled over and given that information (id. ¶ 2 [I]). Accordingly, the Court finds that claimant's stated accrual date of February 20, 2017 is proper (Kruglov v State of New York, UID No. 2017-015-269 [Ct Cl, Collins, J., Oct. 18, 2017] [finding that the date the claimant is cited for driving with a suspended license is the proper accrual date in a negligence cause of action), and the claim was timely filed and served.
Next, defendant argues that it is entitled to absolute immunity for the negligence cause of action alleged by claimant. In order to sustain a claim for negligence against the State involving a classic governmental function, claimant must allege that the governmental action was ministerial, not discretionary (Valdez v City of New York, 18 NY3d 69, 75 [2011]; McLean v City of New York, 12 NY3d 194, 202 [2009]). The State can only be held liable for ministerial governmental action if it violates a special duty owed to the claimant (Signature Health Center, LLC v State of New York, 28 Misc 3d 543, 555 [Ct Cl 2010]). A special duty can be created in one of three ways: (1) by a statute that was enacted for the benefit of a particular class of persons; (2) by voluntary assumption of a duty toward a private party who then justifiably relies on proper performance of that duty; or (3) by assuming positive direction and control in the face of a known, blatant and dangerous safety violation (Pelaez v Seide, 2 NY3d 186, 199-200 [2004], citing Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]). Claimant bears the burden of establishing that a special duty exists, and that the State was required to exercise reasonable care toward claimant (Peleaz v Side, 2 NY3d at 198-199).
In a case nearly identical in factual circumstance to the instant claim, Judge Collins held that the DMV's failure to send a driver a notification of a DRA, while negligent, was "an insufficient predicate for the imposition of liability" under the standard set forth in McLean (Nuzzolo v State of New York, UID No. 2010-015-179 [Ct Cl, Collins, J., Oct. 14, 2010]). Judge Collins found that the "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" (id., citing Rollins v New York City Bd. of Educ., 68 AD3d 540 [2009]; see Drever v State of New York, 134 AD3d 19, 25 [3d Dept. 2015]). Moreover, the statutory mandate requiring that claimant be notified of the DRA at the address on file with the DMV does not set forth an express of implied private right of action (see VTL § 503 [4] [c]; Nuzzolo v State of New York, UID No. 2010-015-179 [Ct Cl, Collins, J., Oct. 14, 2010]; see Rudolph v State of New York, UID No. 2013-015-446 [Ct Cl, Collins, J., Sept. 19, 2013]). Here, like the claimant in Nuzzolo, claimant alleges that the DMV's failure to send a DRA notification to the address listed on her traffic ticket constituted negligence. However, like the claimant in Nuzzolo, claimant has failed to allege the existence of a special duty, and the Court cannot discern a special duty owed to claimant from the allegations contained in the claim. Accordingly, the Court must find that claimant's cause of action alleging the negligent performance of a ministerial function by the DMV is dismissed as defendant is immune from liability for the actions alleged in the claim.
The Court notes that, although it has determined that claimant's cause of action must be dismissed for failure to state a cause of action, the Court agrees with claimant's argument that the DMV should streamline its address database. The Nuzzolo case set forth in detail the reason why the claimant in that case and the claimant here were never notified of the DMV's imposition of a DRA. The DMV's Traffic Violation Division utilizes the address listed on the driver's traffic ticket, while the DRA notices are sent using an entirely different database that utilizes the address established in the DMV license system, which in most cases is the last address provided to the DMV by the driver. It is easy to see how this system can cause hardship for out-of-state drivers or drivers who have recently moved and later receive traffic tickets in New York State. These drivers reasonably assume that any correspondence related to the traffic ticket will be sent to the address listed on the traffic ticket. However, under the DMV's current system, the driver's traffic ticket may trigger a DRA notice sent to an entirely different address unbeknownst to the driver. --------
Based upon the foregoing, it hereby
ORDERED that claimant's motion to amend the claim (M-91846) is denied; and it is further
ORDERED that defendant's cross motion to dismiss the claim (CM-92096) is granted; and it is further
ORDERED that claim number 129658 is dismissed.
October 9, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on May 2, 2017. 2. Notice of Motion to Amend Claim, dated February 13, 2018; and Affidavit in Support of Motion, sworn to by claimant on February 13, 2018, with Exhibits A through G annexed thereto. 3. Notice of Cross Motion, dated April 10, 2018; and Affirmation in Opposition to Motion and in Support of Cross Motion, affirmed by Thomas R. Monjeau, AAG on April 10, 2018, with Exhibits 1-2 annexed thereto.