New York State Court of Claims

New York State Court of Claims

SENOR v. THE STATE OF NEW YORK, #2004-015-405, Claim No. 108724, Motion No. M-68176


Claimant's motion to strike defendant's answer and aware summary judgment denied where movant failed to provide copy of the pleadings on the motion and failed to provide proof establishing that claimant was injured or that his confinement was unlawful.

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:
Chanel Senor, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 10, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's summary judgment motion seeking an order striking the defendant's answer and awarding judgment in his favor is denied. The instant claim seeks $500,000.00 in damages for the exacerbation of a pre-existing low back injury on October 16, 2003 when the inmate claimant was directed to operate a jackhammer as part of a work detail at Great Meadow Correctional Facility, Comstock, New York. The claim also seeks $2,500 in damages for wrongful confinement. Claimant alleges he was confined to keeplock without benefit of written charges or a hearing in violation of Department of Correctional Services (DOCS) rules and regulations after complaining to Program Instructor Johnston that he had injured his back while operating a jackhammer. Claimant now moves for summary judgment.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

Subdivision (b) of Rule 3212 of the Civil Practice Law and Rules, in relevant part provides:
(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. * * *
The instant motion is supported by a sworn notice of motion and an affidavit of the claimant; photocopies of claimant's ambulatory health record for the period 4/20/01 - 11/8/01; photocopies of prescription medication labels dated 31 Jan 02, 23 Dec 02, 8 Jun 03, 4 Dec 03, and 20 Jan 04; photocopies of inmate call out slips dated June 4, 2003, June 11, 2003 and June 18, 2003; and a decision of the Inmate Grievance Program Central Office Review Committee dated January 28, 2004 referencing a grievance filed 10/26/03. No pleadings were submitted despite the fact that claimant requests the Court to strike the defendant's answer.

Claimant's "failure to provide a copy of all of the pleadings with [his] summary judgment motion require[s] summary denial of the motion (see, CPLR 3212 [b]; Deer Park Assoc. V Robbins Store, 243 AD2d 443; McMahon v Wolverine Worldwide, 233 AD2d 587)," (Welton v Drobnicki, 298 AD2d 757) "regardless of the merits of the motion" (Nationwide Mut. Inc. Co. v Piper, 286 AD2d 903, 904).

Furthermore, claimant has not supported the motion by proof sufficient to establish his right to judgment as a matter of law. There is no medical proof establishing either injury or aggravation of a pre-existing injury and the record is devoid of facts showing that claimant's confinement was unlawful (Arteaga v State of New York, 72 NY2d 212; Henderson v Coughlin, 163 Misc 2d 20).

Finally, the claimant has offered little to support his motion to strike the defenses asserted in the answer for legal insufficiency. On such a motion the movant bears the burden of coming forward with sufficient proof to demonstrate that a defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676) and the defendant is entitled to every reasonable construction of the pleading and every favorable inference to be drawn therefrom (see, Nahrebeski v Molnar, 286 AD2d 891; Warwick v Cruz, 270 AD2d 255). A motion to dismiss a defense should not be granted where there exists any doubt as to its potential viability (see, Abney v Lunsford, 254 AD2d 318; Krantz v Garmise, 13 AD2d 426; Abdullah v State of New York, Ct Cl December 7, 2001 [Claim No. 104525, Motion No. M-64269] Bell, J., UID # 2001-007-141, unreported).

Accordingly, the instant motion seeking an order striking the defendant's answer and awarding judgment in favor of the claimant is denied.

May 10, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion sworn to March 9, 2004;
  2. Affidavit of Chanel Senor sworn to March 9, 2004 with exhibits;
  3. Affirmation of Frederick H. McGown, III dated March 25, 2004;
  4. Unsworn reply to defendant's affirmation in opposition of Chanel Senor dated April 6, 2004.