New York State Court of Claims

New York State Court of Claims

PAGAN v. THE STATE OF NEW YORK, #2007-040-011, Claim No. 106470, Motion No. M-72848


Synopsis


State’s motion for summary judgment denied – failure to comply with CPLR 3212 to provide Court with copy of pleadings.

Case Information

UID:
2007-040-011
Claimant(s):
NELSON PAGAN
Claimant short name:
PAGAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106470
Motion number(s):
M-72848
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Nelson Pagan, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Kevan J. Acton, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 15, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s motion for summary judgment dismissing the Claim as untimely served is denied.

The underlying Claim, which was filed in the office of the Clerk of the Court on August 7, 2002, asserts that on June 15, 2001, a hearing officer at a disciplinary hearing denied pro se Claimant, Nelson Pagan, the right to call certain witnesses to testify on his behalf. At the conclusion of the hearing, Claimant was found guilty and received a sanction, which included three months in the Special Housing Unit (SHU) at Upstate Correctional Facility in Malone. In May 2002, Claimant’s guilty determination was administratively reversed and his record expunged. Thereafter, Claimant filed this Claim seeking damages for wrongful confinement.

Defendant asserts that the Claim should be dismissed as it was not timely served upon the Attorney General within 90 days of the Claim’s accrual, i.e., from his release from SHU on April 24, 2002.

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). CPLR 3212(b) requires that a motion for summary judgment be supported, among other proof, by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338). In support of its motion, Defendant did not submit a copy of the Claim or the State’s Answer. The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729, lv dismissed 2 NY3d 793; Deer Park Assocs. v Robbins Store, 243 AD2d 443; CPLR 3212[b]). Therefore, based upon the foregoing, the motion for summary judgment is denied.



March 15, 2007
Albany, New York

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


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

Papers Numbered


Notice of Motion, Affirmation in Support and
Affidavit in Support 1


Claimant’s Opposition to Motion and
Exhibits Attached 2

Filed papers: Claim and Answer