| Matter of Martinez v State of New York |
| 2009 NY Slip Op 04146 [62 AD3d 1225] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Evelyn Martinez, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Mercure, J. Appeal from an order of the Court of Claims (Sise, P.J.), entered January 16,2008, which denied claimant's application pursuant to Court of Claims Act § 10 (6) forpermission to file a late notice of claim.
In 1998, following claimant's failure to answer a summons and appear at a hearing, she wasconvicted of a traffic infraction and her driver's license was suspended (see Vehicle andTraffic Law § 226 [3]; § 227 [4] [a]). Although the conviction was reported, thesuspension was not detected during claimant's subsequent interactions with motor vehicleofficials in other states, nor was it noted by officials who stopped claimant at the UnitedStates-Canadian border. In 2004, the suspension was discovered and claimant was arrestedfollowing a traffic stop in this state. Claimant filed a claim in 2006, alleging that the delay indiscovering the license suspension was indicative of negligence on the part of defendant.Claimant also sought permission to file that claim late. The Court of Claims denied claimant'sapplication on the sole ground that the claim lacked merit, and this appeal ensued.
The Court of Claims has broad discretion in determining whether to grant or deny anapplication for permission to file a late notice of claim and its decision will not be disturbedabsent a clear abuse of that discretion (see Court of Claims Act § 10 [6]; Matter of Magee v State [*2]of New York, 54 AD3d 1117, 1118 [2008]). Among thefactors to be considered on such an application is "whether the claim appears to be meritorious"(Court of Claims Act § 10 [6]). Although "the presence or absence of any one factorshould not be deemed controlling" (Malek v State of New York, 92 AD2d 659, 659[1983]), it is evident that "it would be futile to permit a defective claim to be filed even if theother factors in Court of Claims Act § 10 (6) supported the granting of the claimant'smotion" (Savino v State of New York, 199 AD2d 254, 255 [1993]; see McCarthy vNew York State Canal Corp., 244 AD2d 57, 61 [1998], lvs denied 92 NY2d 815[1998]).
Here, claimant does not dispute that she was convicted of a traffic infraction in 1998 and,indeed, concedes that the conviction appears on her driving record. Her claim is essentially thatthe Department of Motor Vehicles failed to properly report and enforce the accompanyingsuspension. Assuming that defendant owed any cognizable duty to claimant, damages are anessential element of a negligence claim (see Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646,648 [2004]; Hidden Meadows Dev. Co. v Parmelee's Forest Prods., 289 AD2d 642, 643[2001]). As the Court of Claims observed, defendant's alleged negligence had no effect onclaimant beyond allowing her to continue driving past the point where the suspension wouldordinarily have been discovered. Under these circumstances, we agree that the proposed claim is"patently groundless, frivolous or legally defective, and [that] the record as a whole [does not]give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d444, 444 [2008]; see Matter of Magee v State of New York, 54 AD3d at 1118).
We have examined claimant's remaining arguments and find them to be without merit.
Cardona, P.J., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.