New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2003-015-353, Claim No. 105597, Motion Nos. M-67193, CM-67241


Court denied both claimant's motion for partial summary judgment determining liability and State's cross-motion for summary judgment dismissing the claim on the ground that neither motion was timely made pursuant to a directive contained within the Court's preliminary conference order.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Lite & RussellBy: Frank S. Russell, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for partial summary judgment seeking a determination of liability on his claim alleging that he was unlawfully imprisoned by the New York State Department of Correctional Services (DOCS) from November 8, 2001 to December 14, 2001 is denied. Defendant's cross-motion for summary judgment seeking an order dismissing the claim on the grounds that claimant was lawfully imprisoned during the stated period pursuant to Penal Law § 70.40(3)(a) and (c) is likewise denied. Following a preliminary conference the Court issued an order dated May 2, 2002 which provided the following directive: "ORDERED that pursuant to CPLR 3212 (a) any motion for summary judgment is to be served and filed within 60 days of the filing of the note of issue." Since the note of issue was filed April 23, 2003 the last day for service and filing of either party's summary judgment motion was June 22, 2003. Claimant's counsel submitted a motion for summary judgment by letter to the Court dated July 15, 2003. By letter dated July 18, 2003 claimant's attorney was advised that the motion was both untimely under the 60 day period established in the order and non-conformant with the filing requirements of section 206.9 of the Uniform Rules for the Court of Claims (22 NYCRR 206.9) which requires that an original and two copies of motion papers be filed with the Chief Clerk. However, prior to the receipt of the Court's letter, claimant's attorney again mailed an original and two copies of his motion papers directly to chambers. Upon receipt of these papers the Court contacted counsel's office and was advised of Mr. Russell's unavailability. The Court advised counsel's secretary that the second set of motion papers had not been filed and that the motion was untimely pursuant to the preliminary conference order. She informed the Court that Mr. Russell did not wish to withdraw the motion despite its untimeliness. Rather than return the papers again the Court requested that the Chief Clerk's Office assign a motion number and calendar the motion for August 20, 2003. Claimant's motion is now denied for failure to comply with the direction contained in the Court's May 2, 2002 order requiring that motions for summary judgment be served and filed within 60 days of the filing of the note of issue (CPLR 3212 [a]).

In response to the motion the defendant served a cross-motion for summary judgment by regular mail upon claimant's attorneys on August 12, 2003 and filed it with the Court on August 14, 2003. The cross-motion opposed claimant's "motion" and presented the affidavit of Richard de Simone, DOCS Associate Counsel, addressing the merits of the claim. The defendant offered no excuse for failing to make its motion for summary judgment within the time constraints imposed by the Court's May 2, 2002 order and it is likewise deemed untimely.

The trial of this matter will proceed as scheduled unless the claim is withdrawn or a settlement is reached in the interim.

September 10, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 21, 2003;
  2. Affirmation of Frank S. Russell dated July 15, 2003 with exhibits;
  3. Notice of cross-motion dated August 12, 2003;
  4. Affidavit of Michael C. Rizzo sworn to August 12, 2003
  5. Affidavit of Richard de Simone sworn to August 5, 2003 with exhibits;
  6. Affirmation of Frank S. Russell dated August 22, 2003.