Opinion
# 2019-041-061 Claim No. 133266 Motion No. M-94402
09-30-2019
JAMES P. SCOTT v. THE STATE OF NEW YORK
JAMES P. SCOTT Pro Se HON. LETITIA JAMES New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss negligence claim in lieu of answer, pursuant to CPLR 3211 (a) (2) and (7), on the grounds that the Court lacks jurisdiction over the claim because it is untimely pursuant to Court of Claims Act section 10, and because the claim fails to state a cause of action, is granted.
Case information
| UID: | 2019-041-061 |
| Claimant(s): | JAMES P. SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133266 |
| Motion number(s): | M-94402 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | JAMES P. SCOTT Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 30, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves, in lieu of answering, to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7) as untimely pursuant to Court of Claims Act section 10 (3) and because the claim fails to state a cause of action against the State of New York. Claimant opposes the defendant's motion.
The claim seeks money damages for alleged "willful misconduct and gross negligence" of the defendant over a period of years, beginning in February 2012, which allegedly caused "indefinite suspension of Claimant's Florida driving privileges." Claimant's driving privileges were restored pursuant to a CPLR Article 78 Judgment of the Albany County Supreme Court issued on April 4, 2019.
A Notice of Intention to File Claim was served on the defendant on April 19, 2019. The claim was served on the defendant on July 1, 2019.
Although the claim states that it is "based on the willful misconduct and gross negligence of the New York State Department of Motor Vehicles Driver Improvement Unit (the 'DIU')," it is clear that the claim essentially sounds in negligence: "The DIU erroneously reported a 'not eligible' status to the National Driver Registry ('NDR') under Claimant's name, which resulted in the indefinite suspension of Claimant's Florida driving privileges."
It is equally clear that the claim accrued, at the latest, on July 31, 2018, when the claimant received written confirmation from defendant that DIU was "not going to remove the hold and their decision was final and binding." The claim acknowledges that the claim accrued, at the latest, on July 31, 2018, by alleging that "[i]t was at this point that the DIU was guilty of gross negligence."
The Court will first consider the timeliness issue. Court of Claims Act 10 (3) provides as follows:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Both the Notice of Intention to File Claim, and the Claim itself, were served on the defendant more than ninety days after the latest possible accrual date of the claim (July 31, 2018) and the claim is, accordingly, jurisdictionally defective pursuant to Court of Claims Act 10 (3).
Claimant asserts that his claim did not accrue until January 30, 2019 when he received the Albany County Supreme Court Decision and Order which dismissed his Article 78 petition's request for "compensatory and punitive damages" because such damages are not incidental to the primary Article 78 relief sought, namely reinstatement of claimant's driving privileges.
Claimant's assertion that "[t]he [concrete] injury did occur on January 27, 2014, but only came to light during the Article 78 proceeding" is unavailing.
It is well-settled that "[a] cause of action accrues upon the occurrence of all events essential to the claim such that the [claimant] would be entitled to judicial relief" (Utica Mut. Ins. Co. v Avery, 261 AD2d 802, 803 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). In particular, "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 [3d Dept 1997]; lv denied 91 NY2d 814 [1998]).
The claim, and claimant's opposition to the defendant's dismissal motion, make it abundantly clear that claimant's damages were "reasonably ascertainable," at the very latest, by July 31, 2018.
Even assuming that the claim had been timely served, dismissal is required because the claim fails to state a cause of action.
In reviewing a motion brought pursuant to CPLR 3211 (a) (7) alleging failure to state a cause of action, the court should determine "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
The claim fails to state a cause of action against the State of New York because the claim fails to allege facts showing that defendant owed a legal duty of care to claimant sufficient to support the claim's negligence-based cause of action.
"To establish a prima facie case of negligence, the [claimant] is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Evarts v Pyro Engineering, Inc., 117 AD3d 1148, 1150 [3d Dept 2014]). In Di Ponzio v Riordan (89 NY2d 578, 583 [1997]), the court reminded that "[t]he existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court."
Valdez v City of New York (18 NY3d 69, 75 [2011]), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."
Defendant's statutory mandate to issue, and suspend or revoke, driving privileges and to record and report driver's license information is a governmental function (see Ford Motor Credit Co. v State of New York, 133 AD2d 980 [3d Dept 1987]).
In McLean v The City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals recited the law as to the state's duty of care with respect to the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
The defendant's statutorily mandated duty with respect to its governmental function of overseeing driving privileges and recording and reporting driver's license information is owed to the public generally and not to any applicant or licensee individually (Valdez, 18 NY3d at 75: "Under the public duty rule, although a municipality owes a general duty to the public at large . . . this does not create a duty of care running to a specific individual sufficient to support a negligence claim").
The governmental actions of the New York State Department of Motor Vehicles in determining whether to grant driver's license privileges, and in interpreting its own regulations, involve the exercise of discretion (see e.g. Merkel v New York State Dep't of Motor Vehicles, 145 AD3d 1279 [3d Dept 2016]; Matter of Acevedo v New York State Dept. of Motor Vehicles, 29 NY3d 202 [2017]).
McLean (12 NY3d at 203) mandates that the discretionary actions of the defendant "may not be a basis for liability" and the claim thus fails to allege a cognizable common law negligence-based duty of care and, consequently, fails to state a cause of action.
Additionally, claimant fails to state a ministerial negligence cause of action. McLean (12 NY3d at 203), and subsequent case law, demand that, in a ministerial negligence cause of action, the claimant plead facts tending to show that the claimant was owed a special duty by defendant (see Applewhite v Accuhealth, Inc., 21 N.Y.3d 420 [2013]; Metz v State of New York, 20 NY3d 175 [2012]; Valdez v City of New York, 18 NY3d 69 [2011]).
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] 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 [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004]).
Claimant has not alleged facts to show the existence of "a special relationship" between defendant and the claimant as required by Pelaez.
The claim fails to allege facts demonstrating a legal duty of care running from defendant to claimant. The claim thus fails to state a negligence-based cause of action.
To the extent claimant alleges federal or state constitutional causes of action against defendant, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1151 [3d Dept 2009]; see Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]).
Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 [1996]), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant has obtained restoration of his driving privileges in his Article 78 proceeding. Claimant could have pursued a plenary state constitutional tort action in New York State Supreme Court against the state actors who allegedly engaged in the "Gross Negligence and Willful Misconduct" which allegedly violated his state constitutional rights (Haywood v Drown, 556 US 729 [2009]). Claimant's state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
The claim fails to state a cause of action for violation of claimant's federal and/or state constitutional rights.
In view of the claimant's failure to timely serve the claim, and because the claim fails to state a cause of action, the defendant's motion to dismiss is granted.
The claim is dismissed.
September 30, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed August 8, 2019; 2. Affirmation of Anthony Rotondi, sworn to August 8, 2019, and attached exhibits; 3. Claimant's Opposition to the Defendant's Motion to Dismiss, verified by James P. Scott on September 5, 2019, and attached exhibits.