The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss the amended claim and claimant's cross-motion for leave to amend the amended claim:

Claim No. 130502 alleges that on August 5, 2017 at approximately 11:00 a.m., claimant was traveling in the Lake Welch Beach parking lot, Stony Point, Rockland County, when an all terrain vehicle (ATV) operated by Nicholas R. Hughes and owned by New York State Office of Parks and Historic Preservation was traveling at a high rate of speed and struck claimant's vehicle (Claim, ¶ 3). The Police Accident Report attached to the claim indicates that claimant was driving a 2008 Suzuki four-door sedan and that Hughes was driving a 2007 Kawasaki ATV. Photographs taken of the vehicles at the scene were also attached to the claim.

After claimant served a copy of the claim upon the State, the parties stipulated to permit claimant to serve an amended claim alleging that the State was liable pursuant to Vehicle and Traffic Law § 388 Negligence in use or operation of vehicle attributable to owner (State's Exs. B, 3; Claim, ¶ 4) and that claimant had sustained a serious injury as defined in Insurance Law § 5102 (d) and economic loss as defined in Insurance Law § 5102 (a) (Claim ¶¶ 7, 8). The amended claim also alleged that the "liability of the defendant herein is predicated upon the principle of Respondeat Superior, as well as upon the defendant's ownership of the ATV, pursuant to Vehicle and Traffic Law Section 388" (Amended Claim, ¶ 5).

The State served an amended answer which asserted the affirmative defense that the State's vehicle was not a motor vehicle as defined by Insurance Law § 5102 (f) and in accordance with Vehicle and Traffic Law § 311 (State's Ex. C, ¶ 4). The amended answer also asserted the affirmative defense that the claim fails to state a cause of action against the State upon which relief may be granted (State's Ex. C, ¶ 9).

In response to the State's Demand for a Verified Bill of Particulars, as to the acts or omissions of the alleged negligent conduct of the State, claimant responded that the State violated, inter alia, Vehicle and Traffic Law §§ 1110, 1111, 1140, 1180 in failing to safely and properly operate its motor vehicle (State's Exs. D; E, ¶ 7) .

The State moves to dismiss the amended claim on the ground that an ATV is not a motor vehicle under the New York State Vehicle and Traffic Law and that therefore the amended claim fails to state a cause of action.

Claimant opposes the State's motion and argues that the amended claim need not be amended because the amended claim also alleges negligence attributable to the State in its ownership and operation of the ATV. Additionally, claimant cross-moves for leave to serve and file a second amended claim which deletes reference to Section 388 of the Vehicle and Traffic Law, in the event that the Court deems it necessary. Claimant argues that the State would not be prejudiced by an amendment to the amended claim to delete any reference to the Vehicle and [*2]Traffic Law because the State had notice of the essential facts of the amended claim, discovery has not been completed in this action and depositions have not been conducted. Claimant also cross-moves for an extension of time to file a note of issue after discovery has been completed.

The State opposes claimant's cross-motion seeking to file a second amended claim on the ground that the proposed second amended claim lacks merit. In that regard, the State argues that claimant caused the collision as evidenced by the police accident report and claimant's settlement in Supreme Court with the driver of the ATV (Reply, Exs. A, B).

An ATV is not a motor vehicle as defined by Vehicle and Traffic Law Section 125 and is in fact specifically excluded from the definition of a motor vehicle (see Matter of Progressive Northeastern Ins. Co. v Scalamandre, 51 AD3d 932, 933 [2d Dept 2008] ["ATVs are specifically excluded from the definition of motor vehicles"]). Therefore, claimant cannot maintain a cause of action pursuant to Section 388 of the Vehicle and Traffic Law, which refers to motor vehicles and not ATVs. Additionally, the Court finds that, contrary to the State's arguments, the amended claim sufficiently alleges a negligence claim against the State based upon its ownership and operation of the ATV.

Accordingly, the State's motion to dismiss the amended claim is DENIED in part and GRANTED in part. Specifically, the State's motion to dismiss the amended claim is GRANTED to the extent that the amended claim alleges a cause of action pursuant to Section 388 of the Vehicle and Traffic Law and the State's motion to dismiss the amended claim is DENIED to the extent that the amended claim alleges a cause of action of negligence.

Claimant's cross-motion for leave to amend the amended claim is DENIED as moot. Claimant's cross-motion for leave to extend the time to file a note of issue is hereby GRANTED as follows: the note of issue shall be filed on or before September 1, 2020 and the parties shall appear for a compliance conference at the New York State Court of Claims,140 Grand Street, Suite 507, White Plains, New York on July 13, 2020 at 10:00 a.m.