New York State Court of Claims

New York State Court of Claims

PENA v. STATE OF NEW YORK, #2007-045-019, Claim No. 112326, Motion Nos. M-71973, CM-73618


Synopsis



Case Information

UID:
2007-045-019
Claimant(s):
POLITO PENA
Claimant short name:
PENA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112326
Motion number(s):
M-71973
Cross-motion number(s):
CM-73618
Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Polito Pena, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 2, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were reviewed by the Court on these motions: Claimant’s Notice of Motion with annexed documents, Defendant’s Cross-Motion for Leave to Respond or for Leave to Renew and Defendant’s Affirmation with annexed Exhibits A-F.

Claimant, Polito Pena, a pro se inmate, has brought this motion seeking an order striking defendant’s affirmative defenses and for entry of judgment in his favor. Defendant, the State of New York, initially failed to respond to this motion, however, it subsequently filed a cross-motion, CM-73618, ostensibly seeking permission to belatedly respond to the motion.

Claimant alleged in his claim, inter alia, that Department of Correctional Services personnel improperly placed him in medical confinement. In response defendant filed a Verified

Answer in which it asserted six affirmative defenses. Claimant then served various documents upon defendant which defendant claims were not in proper form to commence a motion. However, the documents filed by claimant and received by the Clerk of the Court of Claims on July 3, 2006 were treated by the Clerk’s Office as a motion. Thereafter, defendant sent a letter to the Clerk of the Court wherein it stated that it did not understand claimant’s communication dated July 3, 2006 and received by the Office of the Attorney General on July 7, 2006. Thus, defendant took no position concerning the document. By letter, the Chief Clerk then informed all parties that the motion numbered M-71973 was calendered before another Judge of the Court of Claims. Subsequently, the motion was reassigned and given a return date of July 18, 2007.

Apparently, the present motion was actually received by the Office of the Attorney General on June 28, 2006. Defendant cites this apparent confusion as its reason for failing to respond to the motion. Due to claimant’s inartfully crafted papers as well as the lack of prejudice to claimant the Court will grant defendant’s application to respond to the instant motion.

Consequently, claimant’s motion, M-71973, is given a new return date of November 21, 2007. Defendant is directed to serve its papers on claimant by November 7, 2007 in order to provide claimant with ample opportunity to reply to defendant’s submission by the return date.

Therefore, for the foregoing reasons, defendant’s cross-motion CM-73618 is granted to the extent stated herein. Additionally, claimant’s motion, M-71973 is adjourned to November 21, 2007.


October 2, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims