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be withdrawn.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.