New York State Court of Claims

New York State Court of Claims

MINIX v. THE STATE OF NEW YORK, #2006-040-003, Claim No. 110439, Motion Nos. M-72319, CM-72418


Synopsis


Claimant’s motion for summary judgment denied. State’s cross-motion to dismiss claim as untimely served and filed also denied.

Case Information

UID:
2006-040-003
Claimant(s):
JOSHUA J. MINIX
Claimant short name:
MINIX
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110439
Motion number(s):
M-72319
Cross-motion number(s):
CM-72418
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Joshua J. Minix, Pro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 16, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Claimant’s motion for summary judgment is denied and the State’s cross motion for summary judgment to dismiss the claim as untimely served and filed is also denied. The claim alleges negligence, medical malpractice and product liability with respect to soap Claimant was provided by Defendant and subsequent treatment for skin irritation.

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see, Crowley’s Milk Co. v Klein, 24 AD2d 920, Wanger v Zeh, 45 Misc 2d 93, affd 26 AD2d 729). 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 issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at page 853). Claimant’s submission fails to establish entitlement to judgment as a matter of law. General allegations that are conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim are insufficient (see, JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385). Claimant’s affidavit asserts he is entitled to summary judgment because Claimant believes the State’s answer is evasive and its response to his demand for a bill of particulars is not responsive. If Claimant believes the responses are improper, the proper motion is one to compel a response to the demand for a bill of particulars (CPLR 3042 [c]). Even assuming the State’s response is not sufficient, the demand seeks particulars as to the Defendant’s affirmative defenses. Claimant has the burden of proving the State’s negligence. The State has the burden of proving its affirmative defenses. The alleged failure to provide adequate responses regarding affirmative defenses does not entitle Claimant to judgment as a matter of law. Claimant has failed to establish with competent evidence that the State negligently manufactured the soap or that the State’s employees provided inadequate medical care. Claimant’s motion is, therefore, denied.

Turning to the State’s cross motion for summary judgment, Defense counsel states that the claim was filed and served on February 1, 2005 (Rizzo affirmation, ¶ 4). Claimant previously moved pursuant to Court of Claims Act § 10(6) for permission to serve and file a late claim that is identical to the instant claim. In a Decision and Order filed on January 5, 2006, Judge Judith A. Hard noted that, in support of his motion, Claimant “admits that his claim was filed nine days late” (Minix v State of New York, Claim No. 110439, Motion No. M-70481, filed January 5, 2006, Hard, J., unreported). Judge Hard denied the motion but did not address the issue of the claim’s untimeliness since the State did not cross move to dismiss. Defendant’s counsel asserts that, since the claim was not timely filed and served, the Court lacks jurisdiction and the claim should be dismissed. As stated above, 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 issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at page 853). Defendant’s submission fails to establish entitlement to judgment as a matter of law. The State has failed to come forward with any evidence as to when any of Claimant’s causes of action accrued. Regarding the cause of action for negligent manufacture of the soap, no evidence has been presented as to when Claimant was given the soap or last used it. As to the alleged medical malpractice, no evidence has been presented by Defendant as to when Claimant last spoke to a medical care provider. In his affidavit submitted in support of his motion, Claimant asserts that he erroneously believed the Claim was served and filed nine days late. He now believes, however, that the tolling provisions of CPLR §214-a for continuous treatment are applicable and that his claim is timely. Defendant has offered no proof to refute that assertion. As the Defendant has failed to establish by competent evidence that the claim was not timely served and filed, the cross motion for summary judgment dismissing the claim is denied.


November 16, 2006
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Claimant’s motion and the State’s cross motion for summary judgment:

Papers Numbered


Notice of Motion, Affidavit in Support
and Exhibits Attached 1


Notice of Cross Motion, Affidavit in
Support and Exhibits Attached 2


Claimant’s Opposition to Defendant’s
Cross Motion and Exhibit Attached 3


Filed Papers: Claim and Answer