Opinion
# 2011-032-029 Motion No. M-79702
09-30-2011
PALMER v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-032-029 Claimant(s): LINCOLN LEO PALMER Claimant short name: PALMER 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-79702 Cross-motion number(s): Judge: JUDITH A. HARD Samuels & Associates, P.C. Claimant's attorney: By: Violet E. Samuels, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Michael T. Krenrich, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: September 30, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Lincoln Leo Palmer (movant) moves this Court for permission to file and serve a late claim. Defendant opposes the motion on the basis that the proposed claim lacks merit. For the reasons set forth below, this Court denies movant's motion.
The proposed claim alleges that on July 13, 2008, movant was stopped by a police officer and arrested for driving on a suspended license when his license was erroneously suspended. Movant was taken from his car, handcuffed and transported to a police vehicle. He was then taken to the precinct, where he was locked up for approximately four to six hours, fingerprinted and photographed. Movant alleges that he was robbed of his freedom and that he sustained personal and psychological injuries.
Movant states, in support of his application, that a claim was previously and timely served upon the office of the Attorney General and the Clerk of the Court of Claims on or about August 8, 2008. However, the papers "served" upon the Clerk of the Court were rejected because the filing fee was not included. Unfortunately, due to clerical error, the rejected papers were then stapled to and filed away with the office copy of the Notice of Claim.
Defendant argues that the proposed claim contains fatal flaws on factual and legal bases, which render it meritless. Specifically, defendant states that the proposed claim contains only conclusory allegations that movant was improperly arrested because his privilege to drive in New York State was improperly suspended, without setting forth the specific allegations of actions taken by the State which were negligent or causative of his alleged injuries. Defendant further argues that the proposed claim fails to allege the existence of a special duty owed to movant which is separate and apart from a duty owed to the public at large, and that movant therefore, has failed to set forth a meritorious cause of action. The Court agrees.
LAW
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10[6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
In the present case, movant alleges negligence against defendant. Causes of action for negligence carry a three-year Statute of Limitations (CPLR § 214). Movant alleges a cause of action which accrued on July 13, 2008. Given that his application for late claim relief was filed on April 14, 2011, less than the statutory three years, his claim would be timely under Article 2 of the CPLR. Accordingly, the Court must now consider the statutory factors set forth in Court of Claims Act § 10 (6).
The first factor to consider is whether the delay in filing and serving the claim was excusable. Movant alleges that the original claim was filed without the requisite filing fee and that the rejected papers were inadvertently attached to and filed away with the office copy of the claim. Although the Court appreciates that such errors occur, they do not constitute a reasonable excuse for not timely commencing the claim (see Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]). Accordingly, this factor weighs against the granting of the movant's motion.
The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together. Movant alleges, and defendant does not dispute, that he served the original claim upon the Attorney General's Office on August 8, 2008, and that the claim was never returned. Accordingly, defendant was on notice of the claim and had an opportunity to investigate, such that it cannot now claim (and notably, has not done so) that it has been prejudiced. Accordingly, these factors weigh in favor of granting the movant's motion.
Movant has not alleged that he has no other adequate available remedy and defendant has not argued to the contrary. Accordingly, this factor weighs against the granting of movant's motion.
The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, movant need not demonstrate a likelihood that he will prevail on his claim; he need only show that the proposed claim is not patently groundless, frivolous, or legally defective (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]. In addition, the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (id.). While there is a heavier burden on a movant who is seeking to file late than upon a claimant whose claim is timely, movant is not required to definitively establish the merits of his claim or overcome all legal objections thereto (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977], supra).
Defendant's potential liability in cases such as this depends upon whether or not the governmental action being performed is discretionary or ministerial in nature (see McLean v City of New York, 12 NY3d 194 [2009]; Signature Health Ctr, LLC v State of New York, 28 Misc 3d 543 [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 not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [movant], apart from any duty to the public in general" (McLean v City of New York, 12 NY3d 194, 203 [2009], supra).
In the present case, movant states that the Department of Motor Vehicles (DMV) failed to update its records to reflect his payment of a parking ticket. Movant alleges that because of DMV's failure, his license was improperly suspended, which resulted in him being improperly arrested. The State's motor vehicle record-keeping activity is performed as part of its governmental function (see Ford Motor Credit Co. v State of New York, 133 AD2d 980, 981 [3d Dept 1987]). Moreover, the transmission by the State of information contained in DMV records constitutes a ministerial act (see 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]). Accordingly, movant can only recover if he can show that defendant owed him a special duty (McLean v City of New York, 12 NY3d 194 [2009], supra).
A special duty can be created in one of three ways: (1) by the violation of 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 [2004], at 199-200, citing to Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]).
Movant does not allege and the facts do not support the existence of a special duty in accordance with the first and third categories set forth above. Movant alleges, however, that a special duty was created pursuant to the second category. Specifically, claimant alleges that DMV voluntarily assumed a duty to movant, who justifiably relied on the proper performance of that duty.
To establish a special relationship based upon the voluntary assumption of a duty toward a private party who then justifiably relies on proper performance of that duty, a movant must prove: (1) an assumption by the governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the governmental entity's agents that inaction could lead to harm; (3) some form of direct contact between the governmental entity's agents and the injured party; and (4) that party's justifiable reliance on the governmental entity's affirmative undertaking (McLean v City of New York, 12 NY3d 194, 201 [2009], supra; Cuffy v City of New York, 69 NY2d 255, 260 [1987]).
Movant alleges that DMV assumes the duty to maintain accurate driving records on behalf of movant with the full knowledge that if a mistake is made and movant's license is flagged as suspended, that movant could be harmed. Movant further alleges that he relied upon the employees of DMV to maintain accurate records so as to prevent injury or harm to him, and that there was direct contact between the two as movant had paid for his ticket. The Court disagrees.
As set forth above, ministerial actions may only be a basis for liability if they violate a special duty owed to the movant, apart from any duty to the public in general (see McLean v City of New York, 12 NY3d 194 [2009], supra). No special duty arises from the failure to enforce laws designed to protect the general public from health, safety or fire hazards (see Quinn v Nadler Bros., Inc., 59 NY2d 914 [1983]). The proposed claim fails to set forth how a DMV employee acted on movant's behalf or made any promises or assurances to movant. Inasmuch as defendant owed no greater duty to movant than it did to all members of the public, the State cannot be said to have assumed any affirmative duty upon which movant might have justifiably relied (see Doe v Town of Hempstead Bd. of Educ., 18 AD3d 600 [2d Dept 2005]); Torres v State of New York, 13 Misc 3d 323 [Ct Cl 2006]; Chung v State of New York, 122 Misc 2d 676 [Ct Cl 1984]. Accordingly, movant has failed to set forth a meritorious cause of action upon which relief can be granted.
The Court is sympathetic to the traumatic experience Mr. Palmer endured as a result of his arrest. Nevertheless, the Court is compelled to apply the law and, upon balancing all of the factors in Court of Claims Act § 10 (6), must deny movant's motion for permission to file and serve a late claim.
Motion No. M-79702 is denied.
September 30, 2011
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to File a Late Claim and Affirmation in Support of Motion to File a Late Claim, affirmed by Violet E. Samuels, Esq., on April 8, 2011, with Proposed Claim and Exhibits.
2. Affirmation in Opposition, affirmed by Michael T. Krenrich, AAG, on May 3, 2011.
3. Reply Affirmation, affirmed by Violet E. Samuels, Esq., on May 24, 2011.