Opinion
Index No. 153162/2020
02-18-2022
Uchenna UGO-ALUM, Asher Berkovic, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Defendant.
Attorneys for Plaintiff Uchenna Ugo-Alum and Asher Berkovic, Individually and on behalf of all others similarly situated, Marvin L. Frank, Esq., Frank LLP Attorneys for Plaintiff Uchenna Ugo-Alum and Asher Berkovic, Individually and on behalf of all others similarly situated, 370 Lexington Avenue, Suite 1706, New York, New York 10017, Tel: (212) 682-1853, mfrank@frankllp.com Attorneys for Defendants, Michele Simensky, Assistant Attorney General, NYS Office of the Attorney General, 28 Liberty Street, New York, New York 10005, (212) 416-8627, Michele.simensky@ag.ny.gov
Attorneys for Plaintiff Uchenna Ugo-Alum and Asher Berkovic, Individually and on behalf of all others similarly situated, Marvin L. Frank, Esq., Frank LLP
Attorneys for Plaintiff Uchenna Ugo-Alum and Asher Berkovic, Individually and on behalf of all others similarly situated, 370 Lexington Avenue, Suite 1706, New York, New York 10017, Tel: (212) 682-1853, mfrank@frankllp.com
Attorneys for Defendants, Michele Simensky, Assistant Attorney General, NYS Office of the Attorney General, 28 Liberty Street, New York, New York 10005, (212) 416-8627, Michele.simensky@ag.ny.gov
Alexander M. Tisch, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 14, 15 were read on this motion to/for DISMISS.
Upon the foregoing documents, defendant New York State Department of Motor Vehicles (defendant or DMV) moves to dismiss the complaint pursuant to CPLR 3211 (a) subdivisions (2), (3) , (7) and, in effect, (5).
A motion to dismiss pursuant to CPLR 3211 (a) (3) is based on a lack of capacity to sue. "[L]egal capacity ... concerns a litigant's power to appear and bring its grievance before the court" (Security Pac. Natl. Bank v Evans , 31 AD3d 278, 279 [1st Dept 2006] ) — which is not seriously disputed here. Rather, defendant's motion suggests that the plaintiffs do not have standing and the matter is not ripe to bring a claim alleging a violation of the Eight Amendment prohibition against excessive fines. Accordingly, it is addressed in that vein, and not with respect to capacity, as set forth infra.
Subdivision (5) is implicated as the motion also argues for dismissal based on the statute of limitations and a putative estoppel defense.
BACKGROUND
I. Statutory Scheme
In 2004, the New York State Vehicle and Traffic Laws were amended to include provisions for a Driver Responsibility Assessment (DRA), imposing a fee upon any motorist who accumulates six or more points on their driving record during an eighteen-month period ( Vehicle and Traffic Law [VTL] § 503 [4] ; see L 2004, ch 59, part E). The fee is one-hundred dollars per year over a three-year period and an additional twenty-five dollars is assessed for each additional point on the driver's record ( VTL § 503 [4] [b] ). Subdivision (c) of this statute states:
VTL § 1199 was also enacted by the same law, which is a similar provision concerning only alcohol or drug related traffic offenses, and imposes greater fees.
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 ( VTL § 503 [4] [c] ).
Failure to pay the DRA fee results in automatic suspension of the driver's license or privilege to obtain a license (i.e., privilege to lawfully drive in New York State [NYS] per VTL § 250 [2] ) and remains suspended until the DRA fee is paid in full ( VTL § 503 [4] [d] ).
II. Plaintiff Uchenna Ugo-Alum
Plaintiff Ugo-Alum used to live in Queens County, New York and had a NYS driver's license. That license was surrendered on or about March 16, 2009, when he moved to New Jersey (NJ) and obtained a NJ driver's license. The complaint alleges that the "DMV was immediately notified of Plaintiff Ugo-Alum's new NJ license, and corresponding address in that state, via information-exchange networks and databases that both DMV and its NJ counterpart access and update frequently" (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint at ¶ 27).
On December 9, 2015, Ugo-Alum received a six-point speeding ticket in Queens, New York. He plead guilty and paid a fine with the Traffic Violations Bureau (TVB). The speeding ticket had his NJ address, which the officer obtained from his NJ driver's license. When paying the ticket online, Ugo-Alum was prompted to update or confirm his address, which he did.
Because the 2015 speeding ticket was a six-point ticket, plaintiff's license and driving privileges in NYS were automatically suspended under the DRA provisions. Plaintiff alleges he never received any notice as required by VTL § 503 (4) (c).
On November 9, 2018, plaintiff was stopped by a police officer for allegedly crossing over a hazard line and the complaint alleges as follows:
After running his name through the system, the officer informed Plaintiff Ugo-Alum that his NYS driving privileges had been suspended, and that she had the authority to immediately impound his vehicle, but was declining to do so at that time. Instead, she issued two tickets: one for crossing over a hazard line, and the other for driving without a license (id. at ¶ 34).
In November 2019, plaintiff eventually found out about the DRA and that the notice was sent to his old address in Queens. He promptly paid the fine (id. at ¶¶ 38-39).
III. Plaintiff Asher Berkovic
Berkovic used to live in Kings County (Brooklyn), New York and had a NYS driver's license. That license was surrendered on or about November 13, 2014 when he moved to Quebec, Canada. The complaint alleges that "[t]he DMV was immediately notified of Plaintiff Berkovic's new Quebec license, and corresponding address in that province, via information-exchange networks and databases that both the DMV and its Quebec counterpart access and update frequently" (id. at ¶ 44).
Plaintiff received a 3-point speeding ticket on August 6, 2018 and 3-point ticket for failing to stop at a stop sign in Queens on May 23, 2019. As with Ugo-Alum, Berkovic's ticket reflected his Quebec address, as did the payment methods. However, the DRA notice was sent to his old address in Brooklyn. His parents told him about a letter from the DMV in mid-October of 2019, but he was unable to receive the DRA notification in time to avoid suspension of his license, which lasted approximately one month.
The complaint does not state exactly where the ticket was issued, but it was returnable in Colonie Town Court.
IV. Procedural Background
Plaintiffs commenced the instant putative class action on May 25, 2020 claiming that the DMV's policy of suspending the driving privileges of former New York State (NYS) residents and imposing related fees and prosecutions for driving in NYS with a suspended license due to their failure to respond to certain notices is unconstitutional. Specifically, plaintiffs allege that the DMV's knowing use of incorrect mailing addresses constitutes a violation of the due process clause of the Fourteenth Amendment and the Eighth Amendment of the U.S. Constitution and Article I of the NYS Constitution. Plaintiffs also assert a claim that the DMV's actions in failing to effectuate adequate notice (i.e., the same violations of due process) are arbitrary and capricious. The complaint seeks declaratory and injunctive relief, as well as damages and attorneys’ fees.
Although plaintiffs assert that the same allegations constitute a violation of the Takings Clause, the clause, as it is commonly referred to as under the Fifth Amendment, states "nor shall private property be taken for public use, without just compensation" (US Constitution, Amendment V ). In this vein, the Court agrees with defendant that the plaintiffs fail to plead a cognizable claim under the Takings Clause under the Fifth Amendment. Indeed, the complaint only refers to the Fourteenth Amendment and its due process clause, which, with the Eight Amendment, appear to be the only relevant Constitutional Amendments at issue in this case.
Defendant now moves, pre-answer, to dismiss the complaint pursuant to CPLR 3211 (a), arguing that the complaint is brought in improper form and should be an Article 78 proceeding. Consequently, defendant argues that such proceeding(s) would be untimely under the four-month statute of limitations for commencing the same. Defendant also argues that, to the extent that the complaint seeks monetary damages against the NYS, this Court lacks jurisdiction and those claims must be heard in the Court of Claims. Defendant also claims that plaintiffs are estopped from challenging the DRA and the complaint fails to plead that the NYS owed them a special duty. Finally, defendant contends that the claim alleging a violation of the Eighth Amendment's prohibition against excessive fines should be dismissed for lack of standing and that the matter is not ripe for adjudication.
DISCUSSION
I. Lack of Jurisdiction and/or Improper Form of Proceedings
As an initial matter, the Court denies that branch of the motion premised upon lack of subject matter jurisdiction. Defendant argues that, to the extent plaintiffs seek monetary damages, the claims have to be brought in the Court of Claims. This is true where "money damages are the essential object of the claim," but not where, as here, "the principal claim is equitable in nature (such as a challenge to the administrative actions and policies of a state agency), with monetary relief being incidental to the principal claim" ( Pinnacle Bus Serv., Inc. v State of New York, 19 Misc 3d 998, 1003-04 [Ct Cl 2008] ; see Matter of Gross v Perales, 72 NY2d 231, 236 [1988] ["the cases relied on by the State are not applicable, since they involve contract and tort actions seeking damages from the State, or eminent domain proceedings over which the Court of Claims clearly has jurisdiction"]). Additionally, the Court of Claims would be an improper venue to hear plaintiffs’ claims concerning a violation of their federal constitutional rights (see Nuzzolo v State of New York , Ct Cl, October 14, 2010, Collins, J., UID No. 2010-015-179).
Additionally, if the Court accepted defendant's primary argument that this matter should have been brought as an Article 78 proceeding (discussed infra ), CPLR 7806 permits damages incidental to the primary relief, and would not necessarily form the requisite ground to divest this Court of jurisdiction.
The Court also rejects the defendant's contention that the claims in this action must be pursued by way of an Article 78 proceeding. First, it should be noted that courts are statutorily authorized to change the form of a matter from a special proceeding to an action and vice versa pursuant to CPLR 103 (c), stating "a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form." If the Court did so here, the Court acknowledges that the statute of limitations would be an obvious issue (see CPLR 217 ; Rosenthal v City of New York , 283 AD2d 156, 160 [1st Dept 2001] ), but it remains unclear whether the Court must be compelled to do so.
By the same token, the Court rejects any assertion that improper form is a jurisdictional matter (see NYSCEF Doc No. 6, brief for defendant at 2 [table of contents puts the "improper" form argument under the "lack of jurisdiction" heading]).
While an Article 78 proceeding "provides the mechanism for challenging a specific decision of a state [or municipal] administrative agency" ( Campo v NY City Employees’ Ret. Sys., 843 F2d 96, 101 [2d Cir 1988] ), it is not always the exclusive means of doing so, particularly in claims asserting due process violations. Thus, the "availability of additional process in an Article 78 proceeding does not a bar a due process claim" ( Rothenberg v Daus, 481 Fed Appx 667, 676 [2d Cir 2012] ) and does not "automatically satisfy due process" ( Rivera-Powell v New York City Bd. of Elections, 470 F3d 458, 465 [2d Cir 2006] [emphasis removed], citing Hellenic Am. Neighborhood Action Comm. v City of New York, 101 F3d 877, 880 [2d Cir 1996] [hereinafter HANAC]). Accordingly, determining the role of the availability of an Article 78 proceeding, or other administrative means to seek redress, are issues that fall within the much broader question of what constitutes adequate due process.
II. Fourteenth Amendment Due Process
"It is well established that many state-created privileges, such as a license to drive, ‘are not to be taken away without that procedural due process required by the Fourteenth Amendment’ " ( Gudema v Nassau County, 163 F3d 717, 724 [2d Cir 1998], quoting Bell v Burson, 402 US 535, 539 [1971] ). "Ordinarily, the Due Process Clause requires that the state not deprive an individual of a significant liberty or property interest without affording notice and some opportunity to be heard prior to the deprivation" ( Gudema, 163 F3d at 724 ).
"To determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate" ( Rivera-Powell, 470 F3d at 465 [alteration and internal quotation marks omitted], quoting Zinermon v Burch, 494 US 113, 126 [1990] ). This is done through a Mathews analysis, requiring an assessment and balancing of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail" ( Rivera-Powell, 470 F3d at 466, quoting Mathews v Eldridge, 424 US 319, 335 [1976] ).
Whether the state is in a position to provide pre-deprivation process is essential to an inquiry of the adequacy of due process (see Hudson v Palmer, 468 US 517, 534 [1984] ). With that in mind, "the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees" (HANAC, 101 F3d 877, 880 [2d Cir 1996] ). This is because an alleged deprivation of a protected interest due to a random or unauthorized act by a state employee "is in almost all cases beyond the control of the State" ( Hudson, 468 US at 532 ). "[T]he state cannot predict when the loss will occur" and in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation" (id., quoting Parratt v Taylor, 451 US 527, 541 1981 ]), overruled on other grounds by Daniels v Williams, 474 US 327 [1986] ). Therefore, "[w]hen the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy" ( Rivera-Powell, 470 F3d at 465, citing HANAC, 101 F3d at 880 ; Hudson, 468 US at 532 ; see Gudema, 163 F3d at 724-25 ). In other words, "[w]here there is a meaningful postdeprivation remedy, there is no due process violation" ( Gudema, 163 F3d at 724 ). Courts have found that an Article 78 proceeding will typically provide a meaningful post-deprivation remedy and satisfy procedural due process in those situations (see id. [Article 78 proceeding was a meaningful post-deprivation remedy when a police officer's order to suspend plaintiff's license was "plainly a random and unauthorized act" because driving privileges are granted by the NYS and not the Nassau County Police Department]).
"In contrast, when the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing" ( Rivera-Powell, 470 F3d at 465 ). "Under those circumstances, ‘the availability of post-deprivation procedures will not, ipso facto, satisfy due process’ " (id. , quoting HANAC, 101 F3d at 880 ). Rather, "the adequacy of process available to [a plaintiff] is reviewed under the more onerous state-procedure analysis" (Collins v Saratoga County Support Collection Unit, US Dist Ct, ND NY, 12 Civ 494, GLS/RFT, 2012 WL 2571288, at *5-7, 2012, affd 528 Fed Appx 15 [2d Cir 2013] ).
Here, the parties’ papers failed to address any due process analysis, though the Court notes that the allegations in the complaint suggests that the due process violation is based upon an established state procedure (cf. Gudema, 163 F3d at 724-25 ). Therefore, the availability of an Article 78 proceeding does not necessarily satisfy due process (see Collins, 2012 WL 2571288, at *6-7 [dismissing the due process claim after analyzing the Mathews factors by assessing the statutory scheme and availability of both pre- and post-deprivation processes]; but see Rubin v Swarts, US Dist Ct, ED NY, 10 Civ 4119, NGG LB, 2011 WL 1004838, at *3-4, 2011 [failed to engage in a Mathews analysis but went on to find that the availability of an Article 78 proceeding summarily "constitutes a wholly adequate post-deprivation hearing for due process purposes"], quoting Rothenbere v Daus, US Dist Ct, SD NY, 08 Civ 567, SHS RLE, 2010, reversed by 481 Fed Appx 667, 676 [2d Cir 2012] [reiterating that "where a due process violation is based on an established procedure rather than a random, unauthorized act, the availability of additional process in an Article 78 proceeding does not a bar a due process claim but, rather, is a relevant factor in the Mathews analysis"]).
III. Failure to State a Claim
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" ( Leon v Martinez , 84 NY2d 83, 87 [1994] ). "We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( id. at 87—88 ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005] ).
Defendant contends that plaintiffs failed to plead that DMV owed them a special duty. The existence of a special duty is an essential element of a negligence cause of action against a municipality (see Santaiti v Town of Ramapo , 162 AD3d 921, 924 [2d Dept 2018] ; see generally Valdez v City of New York , 18 NY3d 69 [2011] ). However, the complaint here contains no cause of action for negligence. Surely, if it did, it would be expected that it would form the basis for divesting this Court of jurisdiction because such tort claims are heard in the Court of Claims (see supra , citing Matter of Gross, 72 NY2d at 236 ).
The defendant's papers spent a considerable amount of time discussing this issue (see NYSCEF Doc No. 6 at 22-25; NYSCEF Doc No. 15, reply brief for defendant at 13-17). Plaintiffs did as well, by discussing sovereign immunity and/or a governmental immunity defense (see NYSCEF Doc No. 14, brief for plaintiffs at 21-23). However, since special duty was not plead, the Court would not reach the governmental immunity defense in any event (see Valdez , 18 NY3d at 80 ).
Defendant also argues that plaintiffs are "estopped" from contesting the validity of the DRA because they admittedly did not notify the DMV of their change in address pursuant to VTL § 505 (5). That provision states:
Change of address. It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner.
Aside from the omission of any standard of law concerning "estoppel" in the context of a motion to dismiss for failing to state a claim (cf. CPLR 3211 [a] [5] [motion to dismiss based on, e.g., collateral estoppel]), the Court finds the argument without merit, as VTL § 505 (5) is not applicable to out-of-state licensees (see Meza v Proud Tr. Inc., 55 AD3d 332, 333 [1st Dept 2008] ["there is no authority for the position that a person holding a Pennsylvania (as opposed to a New York) driver's license would be required to report a change of address to the New York Commissioner of Motor Vehicles within ten days of changing his address"]; Nuzzolo , supra ; see also McGuire v City of New York, 301 F Supp 2d 333, 336, n 3 [SD NY 2004] [noting that out-of-state licensees are "arguably ... not statutorily required to update their address changes once they obtain out-of-state licenses"]). Indeed, the Court of Claims in Nuzzolo held that neither VTL § 505 (5) nor VTL § 250 (2) (applicable to out-of-state licensee privileges) support the contention that plaintiffs are obligated to update their address in the manner suggested by defendant (see Nuzzolo , supra ).
IV. Eighth Amendment
Finally, defendant contends that the claim alleging a violation of the Eighth Amendment's prohibition against excessive fines should be dismissed for lack of standing and that the matter is not ripe for adjudication. Defendant argues that plaintiffs lack standing as they were "never fined ... for driving without a license" and that plaintiff Ugo-Alum's claim is unripe because the trial on the driving without a license charge is pending (NYSCEF Doc No. 6 at 28-30). However, this complaint is not just about paying fines for driving without a license — defendant makes no argument as to the fines allegedly issued without notice and the suspension of driving privileges, also allegedly done without notice. Indeed, defendant has not argued that an alleged violation of a constitutionally protected right would not constitute an injury itself.
"Under the Eighth Amendment, ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’ " ( Timbs v Indiana, 139 S Ct 682, 687, 203 L Ed 2d 11 [2019] ). The prohibition on the imposition of excessive fines is also found in the New York State Constitution (art 1, § 5 ). "The Excessive Fines Clause thus ‘limits the government's power to extract payments, whether in cash or in kind, as ‘punishment for some offense’ " ( County of Nassau v Canavan, 1 NY3d 134, 139 [2003], quoting Austin v United States, 509 US 602, 609-610 [1993] [emphasis removed]). Again, contrary to the defendant's contention, the complaint is not just about a fine for driving without a license — rather, the allegations concerning the DRA fines and the automatic suspension of driving privileges for failing to pay the fines appear to be at issue. Both are conceivably "fines" as they constitute a punishment for an offense (see Canavan, 1 NY3d at 139-40 [noting that forfeitures may constitute "fines" as payments in kind], citing United States v Bajakajian, 524 US 321, 328 [1998] ); Timbs, 139 S Ct at 689 ["fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost a State money"], quoting Harmelin v Michigan , 501 US 957, 979, n 9 [1991] [Scalia, J.] ["it makes sense to scrutinize governmental action more closely when the State stands to benefit"]).
Defendant claims that plaintiff did not plead how much the fines were (NYSCEF Doc No. 6 at 30) but the Court finds that would be unnecessary as they are set forth in the applicable VTL statute.
CONCLUSION
Accordingly, it is hereby ORDERED that the motion is denied; and it is further
ORDERED that defendant shall file and serve an answer to the complaint within forty-five (45) days from service of this order with notice of entry.
After issue is joined, the parties should request a preliminary conference on NYSCEF and notify SFC-Part18-Clerk@nycourts.gov of the same.
This constitutes the decision and order of the Court.