New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2006-040-004, Claim No. 112865, Motion No. M-72506


Synopsis


Claimant’s motion for summary judgment denied as premature.

Case Information

UID:
2006-040-004
Claimant(s):
ABDUL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112865
Motion number(s):
M-72506
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Abdul-Jabbor Malik, Pro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 19, 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 pursuant to CPLR 3212 is denied. The Claim, which was filed in the Office of the Clerk of the Court on October 11, 2006, asserts that Defendant denied Claimant his religious freedom to practice his faith during Ramadan.

As an initial matter, the Court notes that CPLR 3212 (a) provides that a party may move for summary judgment after issue has been joined. Issue is joined when Defendant files an answer to the Claim. In this case, the motion was filed on November 8, 2006 and the State’s Answer was not filed until November 16, 2006. Thus, the motion is premature. Pursuant to § 206.7(a) of the Uniform Rules for the Court of Claims, the Defendant has forty (40) days from service of the claim to serve the answer. According to Claimant’s affidavit of service, the Claim was mailed to the Clerk of the Court and the Attorney General on the same date. Thus, the Claim was most likely received by the Defendant on or about the same day as it was received by the Clerk of the Court (October 11, 2006). Therefore, the Court finds that the State’s Answer to Claim No. 112865 is timely.

In his reply papers, Claimant makes reference to Claim No. 112640 that was filed on August 15, 2006. His contention that the State’s Answer is untimely appears to depend upon that August date. Claim No. 112640, however, is a separate claim. In fact, Claimant has written to the Court requesting that it be withdrawn. In any event, Claim No. 112640 is not the subject of Claimant’s motion for summary judgment, and the dates upon which any actions were taken or papers filed in connection with it have no relation to the motion now before the Court.

Even if the motion was not premature, it would be denied. 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. His affidavit contains general allegations of negligence that are conclusory in nature and are unsupported by competent evidence tending to establish the essential elements of the Claim. Such allegations are insufficient (see, Alvarez v Prospect Hospital, 68 NY2d 320).

Therefore, Claimant’s motion is denied.



December 19, 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 for summary judgment:

Papers Numbered


Notice of Motion and “Affidavit in Support” 1

Affirmation in opposition 2

Claimant’s Reply 3


Filed Papers: Claim and Answer