Opinion
# 2017-015-268 Claim No. 126689 Motion No. M-90795 Cross-Motion No. CM-90858
10-10-2017
FRANCES ANNE HARDIN v. THE STATE OF NEW YORK
Harris, Conway and Donovan, PLLC By: Michael C. Conway, Esq. Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Conversion claim was dismissed for lack of jurisdiction and, in any event, was meritless.
Case information
| UID: | 2017-015-268 |
| Claimant(s): | FRANCES ANNE HARDIN |
| Claimant short name: | HARDIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126689 |
| Motion number(s): | M-90795 |
| Cross-motion number(s): | CM-90858 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Harris, Conway and Donovan, PLLC By: Michael C. Conway, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 10, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for partial summary judgment on the issue of liability with respect to her conversion cause of action and defendant cross-moves for summary judgment dismissing the claim.
The facts underlying the claim are not in dispute. Claimant's 1969 Porsche bearing vehicle identification number 119120887 was stolen from a Manhattan street in 1970. Forty-four years later, claimant received a phone call from an individual named Peter Perry informing her that the car had been recovered and partially restored (defendant's Exhibit D in support of cross motion, pp. 15-18). The Department of Motor Vehicles (DMV) was contacted and, upon inspection, it was discovered that the vehicle identification number had been altered to 119120867. Mr. Perry was arrested for possession of stolen property (claimant's Exhibit D, pp.42, 62, 85).
Claimant communicated with Joshua Bull, Senior Investigator for the DMV, regarding the matter and, by e-mail dated July 17, 2014, stated the following:
"I am not interested in having the car returned to me, but it occurs to me that I am the only person who has ever legitimately owned the car.
'But', you might say the insurance company paid you for the car when it was not recovered and therefor it owns the car.
True, but since NYDMV destroys its old car registration records, there is no record of which company insured the car and therefore no way to know which company reimbursed me. So, in a narrow, legalistic sense, am I not the owner of the car?" (part of defendant's Exhibit E).
By letter to Barbara J. Fiala, Commissioner of the DMV, dated April 23, 2015, claimant's former counsel demanded that the vehicle be returned to the claimant (claimant's Exhibit A, see Exhibit B attached to claim). Owen J. McShane, Director of DMV, denied the request by letter dated May 12, 2015, stating in pertinent part the following:
"Based upon our review of the file in this matter, Ms. Hardin was paid by her insurer for the loss of the vehicle. Pursuant to Vehicle and Traffic Law § 429 (1), upon payment of the claim for a stolen vehicle, ownership vests in the insurer. Therefore, the vehicle cannot be returned to Ms. Hardin, because she is no longer the owner of such vehicle.
Since the insurer cannot be located in this case, the recovered theft vehicle has been impounded and is now the property of New York State. It will be sold at public auction by the NY State Office of General Services" (claimant's Exhibit A, see Exhibit C attached to claim).
A notice of intention to file a claim was thereafter served on June 19, 2015 and the claim was filed on September 4, 2015. During the course of discovery, claimant served defendant with the following request for admissions to which the defendant failed to respond:
"1. The Respondent does not have legal Title to the Porsche automobile that is the subject of this litigation.
2. The Respondent does not own the Porsche automobile that is the subject to the litigation;
3. The last legal owner of the Porsche automobile that is the subject of this litigation is Frances Anne Hardin;
4. According to the New York State Department of Motor Vehicles records, the last known registered owner of the Porsche automobile that is the subject of this litigation is Frances Anne Hardin.
5. The New York State Department of Motor Vehicles records do not contain any document or record that indicates that Frances Hardin's automobile insurance company ever acquired the Porsche automobile that is the subject of this litigation.
6. The New York State Department of Motor Vehicles records do not contain any document or record that indicates that Frances Hardin's automobile insurance company ever acquired legal Title to the Porsche automobile that is the subject of this litigation.
7. The New York State Department of Motor Vehicles records do not contain any document or record that indicates that Frances Hardin's automobile insurance company ever provided a statement to the Commissioner of Motor Vehicles regarding their acquisition of the Porsche automobile that is the subject of this litigation."
(claimant's Exhibit C).
Claimant contends that because the matters contained in the notice are "deemed" admitted pursuant to CPLR 3123, she has established the fact that she is the last registered owner of the vehicle and, as such, entitled to its return. While the claim alleges causes of action for conversion and replevin, claimant seeks summary judgment on only her first cause of action for conversion.
In opposition to claimant's motion and in support of its cross motion, defendant contends that DMV had the authority to impound the vehicle pursuant to Vehicle and Traffic Law § 423-a and that claimant failed to demonstrate that she is the owner of the vehicle entitled to possession. According to the defendant, once claimant's insurer paid her for the vehicle, it became subrogated to her rights and stands in her shoes for the purpose of making a claim. This contention is premised upon claimant's initial admission in the above-quoted e-mail of July 17, 2014, that she had been paid for the vehicle by her automobile insurer. No documentary evidence exists confirming this fact, however, and claimant testified at an examination before trial that she could not recall if she had been paid for the vehicle by the insurance company (defendant's Exhibit D, pp.13-14). In an affidavit submitted in opposition to defendant's cross motion, claimant explains further:
"4. . . . When first asked, I did say that my belief was that I had been reimbursed by an insurance company.
5. I mentioned this, as a first reaction after not having thought of this vehicle in many years, because this seems to be the usual course of events relative to a vehicle theft. I have also had insurance on any vehicle I have owned in recent years and it seemed like something that would occur when you have insurance.
6. As this matter progressed, however, I was able to make further inquiries, including the discovery demands made in this litigation, and there appears to be no documentation indicating that I had insurance at the time" (Hardin affidavit, ¶¶ 4-6).
Defendant argues that summary judgment dismissing the claim is required because claimant "clearly seems to be seeking to have this Court direct the turnover to her of the car which was stolen from her in 1970" and that such equitable relief is beyond the jurisdiction of the Court of Claims (Monjeau affirmation, ¶ 14). Defendant also contends that although no documentary evidence of payment by claimant's insurer exists, claimant admittedly received payment which, under the doctrine of equitable subrogation, divests her of any interest she may have had in the vehicle.
As a threshold matter, the jurisdiction of the Court of Claims is limited to claims for money damages (NY Const, art VI, § 9; Court of Claims Act §§ 8, 9). Where an award of damages requires review of an administrative determination, the Court does not have jurisdiction (Pratow Corp. v State of New York, 148 AD3d 1065 [2d Dept 2017]; Chevron U.S.A. Inc. v State of New York, 86 AD3d 820, 820 [3d Dept 2011]; City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]; Carver v State of New York, 79 AD3d 1393, 1394, [3d Dept 2010], lv denied 17 NY3d 707 [2011]). This is because " 'an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims' " (Hope for Youth, Inc. v State of New York, 125 AD3d 1211, 1212 [3d Dept 2015], quoting Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1144 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]). Here, an award of money damages would require review of the administrative determination that title vested in the insurer upon payment of the theft claim and therefore claimant "is no longer the owner of such vehicle" and not entitled to its return (claimant's Exhibit A, Exhibit C attached to claim, letter dated May 12, 2015 from Owen J. McShane). While claimant's motion for summary judgment is limited to her first cause of action for conversion, the law is settled that " '[r]egardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims' " (Davis v State of New York, 129 AD3d 1353, 1353-1354 [3d Dept 2015], appeal dismissed 26 NY3d 949 [2015], quoting (Green v State of New York, 90 AD3d 1577, 1578 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]). Inasmuch as the adjudication of this claim would require review of an administrative determination, claimant's recourse is a proceeding in the Supreme Court pursuant to article 78, not an action for money damages in the Court of Claims (see e.g., Matter of Marshall v Soares, 94 AD3d 1258 [3d Dept 2012]; Matter of Vento v New York State Dept. of Motor Vehs., 12 AD3d 684 [2d Dept 2004]; Matter of DePasquale v Suffolk County Police Dept., 304 AD2d 664 [2d Dept 2003]). Alternatively, declaratory relief establishing claimant's ownership and directing the vehicle's return was also an available avenue of redress (see, Carlone v Adduci, 222 AD2d 754 [3d Dept 1995]). Such relief is, with one exception (Court of Claims Act § 9 [9-a]), unavailable in the Court of Claims (Kimmel v State of New York, 29 NY3d 386 [2017]; Wikarski v State of New York, 91 AD2d 1174 [4th Dept 1983]). Accordingly, dismissal of the claim is required for lack of subject matter jurisdiction.
Even if resolution of this matter did not require review of an administrative determination, defendant established its entitlement to summary judgment dismissing the claim (Zuckerman v City of New York, 49 NY2d 557 [1980]). "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006], citing State of New York v Seventh Regiment Fund, 98 NY2d 249 [2002]; see also Petrone v Davidoff Hutcher & Citron, LLP, 150 AD3d 776 [2d Dept 2017]; Reeves v Giannotta, 130 AD3d 1444 [4th Dept 2015]). Vehicle and Traffic Law § 423-a (1) requires that a "peace officer acting pursuant to his special duties shall seize and confiscate a motor vehicle . . . if any original identification number or special identification number is destroyed, removed, altered, defaced, or so covered as to be effectually concealed." Moreover, DMV's continued retention of the motor vehicle is required under the statute "pending the prosecution of the person arrested until the ownership of such motor vehicle . . . shall have been ascertained" (Vehicle and Traffic Law § 423-a [1] [b]; Best Sound & Sec., Inc. v New York City Police Dept., 16 AD3d 528 [2d Dept 2005], lv dismissed in part and denied in part 5 NY3d 877 [2005]).
Defendant established through the uncontroverted deposition testimony of Joshua Bull that: (i) Mr. Bull is a peace officer (defendant's Exhibit C, p. 11), (ii) the vehicle at issue contained an altered VIN (id. at 30-31, 37), (iii) the vehicle was seized upon discovery of the altered VIN (id. at 42, 44), (iv) Peter Perry was arrested for possession of stolen property (id. at 85), (v) the defendant continues to retain possession of the vehicle (id. at 26, 84), and (vi) Mr. Perry's criminal prosecution was pending as of the date of the deposition, February 17, 2017 (id. at 85-86). There is no evidence in the instant record that the prosecution of Mr. Perry has been resolved. Thus, in seizing the vehicle and retaining it pending the outcome of the criminal proceeding the defendant was acting under authority of the governing statute, negating an essential element of claimant's cause of action for conversion, that the defendant's exercise of dominion and control over the vehicle is " 'unauthorized' " (East Schodack Fire Co., Inc. v Milkewicz, 140 AD3d 1255, 1256 [3d Dept 2016], quoting Torrance Constr., Inc. v Jaques, 127 AD3d 1261 [3d Dept 2015]). Under these circumstances, defendant's seizure and retention of the vehicle did not constitute a conversion (see LM Bus. Assoc., Inc. v State of New York, 124 AD3d 1215 [4th Dept 2015], lv denied 25 NY3d 905 [2015]; Best Sound & Sec., Inc. v New York City Police Dept., supra; Kamienska v County of Westchester, 39 Misc 2d 750 [1963]).
Based on the foregoing, the defendant's cross motion is granted, claimant's motion is denied, and the claim is dismissed.
October 10, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated July 13, 2017;
2. Attorney Affirmation dated July 13, 2017, with Exhibits A - E;
3. Memorandum of Law by Michael C. Conway, Esq. dated July 13, 2017;
4. Notice of Cross Motion by Thomas R. Monjeau, Esq. dated August 4, 2017;
5. Affirmation in Opposition dated August 4, 2017, with Exhibits A - F;
6. Affirmation in Opposition/Reply by Michael C. Conway, Esq. dated August 31, 2017, with Exhibits A and B;
7. Affidavit by Frances Anne Hardin sworn to August 30, 2017;
8. Letter from Thomas J. Monjeau, Esq. dated September 6, 2017;
9. Letter from Michael C. Conway, Esq. dated September 11, 2017;
10. Affidavit of Frances Anne Hardin sworn to September 13, 2017;
11. Letter from Michael C. Conway, Esq. dated September 18, 2017.