New York Criminal Lawyer Blog
The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a result of injuries received in the accident. The gravamen of both claims is that the State, through its agents, or employees, was at least partially and proximately at fault for the accident because the Motor Vehicle Department negligently and without authorization issued a temporary driver’s license to the accused in August 1973 under its experimental DWI Counter-Attack Program in Onondaga County.
A New York DWI lawyer said that after filing the Notices of Claim, Claimant moved for an examination before trial of the District Director of the DWI Counter-Attack Program; for the discovery and inspection of various State documents; and, for permission to correct the date of the occurrence of the accident. The State then filed a cross-motion to dismiss both claims, alleging that they failed to state a cause of action and that the Court lacked jurisdiction over the subject matter.
Both counsel provided the Court with briefs and factual evidence through affidavits. The Court considers and weighs evidence submitted with or in opposition to a motion to dismiss. Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion. If no evidence is presented, the Court construes the pleading liberally and presumes that the DUI allegations pleaded are true. The sole question is whether the pleading states a cause of action. However, if evidence is offered, as was the case herein, the test used is not whether the pleading states a cause of action but whether a cause of action exists.
As previously stated, the State’s motion to dismiss pursuant to CPLR 3211(a), paragraph 2 and 7, asserts that this Court does not have jurisdiction over the subject matter and that the claimant has failed to state a cause of action. The State contends that it cannot be held responsible for the tortious acts of its employees or its agents performing a purely governmental function requiring the exercise of discretion or judgment of a quasi-judicial nature; and, further, that the alleged negligence, if there was any, was not a proximate cause of the accident.
In analyzing the State’s potential liability for the acts of its employee or of its agents, the Courts have woven a complex web of decisions. While the Court of Claims Act, Section 8, waived the State’s immunity for liability ‘ in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations’, this language has generally been interpreted not to be a complete waiver of immunity. The waiver has been considered complete for ‘proprietary’ functions. However, the Courts have, in varying degrees, given credence and force to the defense of immunity for causes of actions which arose from the DWI performance of ‘governmental’ functions. There can be no question that the issuance of a driver’s license was the performance of a governmental function and, therefore, that the case does not fall within the category where the State has clearly waived its immunity. Thus, the facts must be carefully scrutinized to ascertain whether they come within or without the perimeters established by law for the State’s defense of immunity.
The courts have been reluctant to interfere with the administrative operation of government because they believe it is best to maintain ‘the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries’. However, the immunity is not unqualified and liability has been found on occasion for acts performed within the sphere of governmental function. The courts have found DUI liability when they were presented with facts which demonstrated that something more than mere error or negligence transpired; or, when the State has manifested intent to protect a certain class of people.
The most relevant decision to the instant case is the decision wherein the Court decided that the City of Buffalo was not liable for an automobile accident which, according to the claimant, had been caused by an unsafe clearance interval between traffic light changes. The interval had been established for all Buffalo traffic lights after due deliberation by the Board of Safety of the City.
In the opinion of the Court, the facts in the case at bar go beyond negligence or error in the decision making process. If the case merely involved the ordinary decision by the Commissioner, or one of his agents or employees, to grant to revoke a license, The Court dismissed the suit for ‘(N)o government could function thus hedged in by law suits.’ Much more exists herein.
The DWI Counter-Attack Program for Onondaga County was established under Sections 520 through 523 of the Vehicle and Traffic Law. Section 521(1) provided for the establishment of ‘Driver rehabilitation programs’ and Section 521(2) provided for the establishment of ‘Driver improvement clinic programs’. As driver’s license had been suspended by the Town Justice of the Town of Cicero, his contact with the counter-attack program could only progress under Section 521(1) of the Vehicle and Traffic Law. Subdivisions (b) and (d) of Section 521(1) provided for the return of revoked or suspended licenses; or, permitted the retention of license against which there was a tentative order of suspension or revocation.
Under § 522 of the Vehicle and Traffic Law the Commissioner of the Motor Vehicle Department was required to establish a driver rehabilitation board which was charged with the responsibility of developing criteria for the selection of persons to be referred for participation in the driver rehabilitation program. (§ 522(2)(c) and the selection of those persons to be referred § 522(2)(d).)
This is the statutory authority for the establishment of the driver rehabilitation program. A strong question exists as to whether or not the DWI Counter-Attack Program followed its statutory mandate. The Court was unable to find, nor was it directed to any, regulations issued by the commissioner establishing the rehabilitation program. Section 521(1) provided that ‘(T)he commissioner may establish, By regulation’, such program. Thus, a rehabilitation program could only have been legally constituted by regulation. The regulations provided in 15 NYCRR Parts 132 and 133 only apply to driver improvement clinics as established by § 521(2) of the Vehicle and Traffic Law and obviously have no relationship to the regulations required under § 521(1) of the Vehicle and Traffic Law.
In its motion, the defendant also contended that the issuance of the temporary driver’s license could not have been a proximate cause of the accident. Certainly, it was not the sole proximate cause of the accident but, in my opinion, it does have a sufficient nexus in time and act to be a proximate cause. Obviously, the accused could have been driving his car on that day without a license. However, the Courts have often said that ‘(I)t was reasonable to expect that the owner would comply with the provisions of the Vehicle & Traffic Law; and, it is just as possible that accused would not have operated his vehicle on the fateful day if he had not had the temporary license.
The purpose of the program was laudatory but certainly the Legislature did not envision that its safeguards would not be established by the Department of Motor Vehicles; or, that it was establishing an unprotected revolving door program for the reissuance of a license. I find a cause of action to be stated in these pleadings under both of the theories discussed herein. Of course, the fact that I find a cause of action exists at this point is not binding on the trial court. As was stated in a case, ‘(F)actual issues were presented by the affidavits and other evidence submitted by the parties on the motion which precluded a determination before trial.’
In its motion, the defendant also contended that the Court lacked jurisdiction of the subject matter of the suit. For the same reasons that I found the causes of action to exist, I find that this Court has jurisdiction over the subject matter of this claim.
The Court ruled grants said motion with respect to claimants’ request to amend the claim of the victim to reflect the correct date of the accident. With respect to that part of the motion which requests an examination before an employee of the State of New York, it is denied insofar as a specific employee is named for the examination. The State is ordered to provide an individual with knowledge of the operation of the program and approval of accused for participation in the program.
Finally, the claimants have requested discovery and inspection of numerous records and papers of the State of New York and its agencies. This part of the motion is granted in part. The Court directed that all records pertaining to the defendant in the possession of the Department of Motor Vehicles and all records in the possession of the Department of Motor Vehicles pertaining to any and all investigations conducted in regard to his qualifications for the DWAI Counter-Attack Program be produced for utilization on the examination before trial.
Issuance of a driver’s license is not a matter of right; rather, it is a privilege to those who were found to be fit in driving.
The licensed driver should be responsible and must be cautious while driving since there were untoward incidents along the way. Here in Stephen Bilkis and Associates, when a victim was injured by reason of others’ negligence, our New York Criminal attorneys will help you claim damages by reason of the said injuries. If the negligent person is found to be drunk while driving, a pertinent complaint drafted by our New York Drunk Driving lawyers will be filed accordingly.