New York State Court of Claims

New York State Court of Claims

BEST v. NYS DEPT. OF MOTOR VEHICLES, #2004-028-550, Claim No. 108936, Motion No. M-68462


Synopsis



Case Information

UID:
2004-028-550
Claimant(s):
TIMOTHY BEST
Claimant short name:
BEST
Footnote (claimant name) :

Defendant(s):
NYS DEPT. OF MOTOR VEHICLES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108936
Motion number(s):
M-68462
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
TIMOTHY BEST, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. CaginoAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion pursuant to CPLR 3212 for summary judgment:

1) Notice of Motion and Supporting Affidavit of Timothy Best filed May 17, 2004 with annexed Exhibits 1-2

2) Affirmation in opposition of Assistant Attorney General Paul F. Cagino filed May 26, 2004.

Claimant's motion is premised upon the lack of an answer from the Defendant in this Claim[1] and the "intentional act of deceiving the court of claims." (Best Affidavit, 4th unnumbered paragraph). Defendant opposes the motion.

Assuming arguendo Defendant was in default as Claimant suggests, the rule governing summary judgment is well established: "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 eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; St. Lawrence County Dep't of Soc. Servs. v Genevieve VV, 2002 NY App Div LEXIS 12681[Third Dept., December 26, 2002]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776). Once the proponent of the motion has established its entitlement to judgment, the burden shifts and the party in opposition to a motion for summary judgment "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Izzo v Lynn, 271 AD2d 801, 802; see also Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).

Measured against the foregoing standards, the submission by Claimant does not establish his entitlement to judgment as a matter of law.

Accordingly, Claimant's motion is denied.


August 13, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] At the conference held on the record in open Court on July 16, 2004 with claimant present, the Court granted Defendant permission to file its Answer, which had previously been timely served on Claimant in March 2004 in response to the "complaint" mistakenly captioned and venued in the New York State Supreme Court.