New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2008-009-004, Claim No. 114118, Motion Nos. M-73973, CM-74049


Synopsis


Defendant’s motion to dismiss the claim based upon improper service was denied, based upon claimant’s proof that he had timely and properly re-served his claim, and claimant’s cross-motion for summary judgment was denied as premature, since issue has not yet been joined.

Case Information

UID:
2008-009-004
Claimant(s):
WILLIAM MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114118
Motion number(s):
M-73973
Cross-motion number(s):
CM-74049
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WILLIAM MITCHELL, Pro Se.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: G. Lawrence Dillon, Esq.,Of Counsel.
Third-party defendant’s attorney:

Signature date:
January 22, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought a pre-answer motion (M-73973) seeking an order dismissing the claim based upon improper service. Claimant has responded with a cross-motion (CM-74049) not only in opposition to defendant’s motion, but also seeking an order granting him summary judgment on his claim.

The following papers were considered by the Court in connection with these motions:
Pre-Answer Motion, Affirmation, with Exhibits (M-73973) 1,2


Cross-Motion, Affidavit in Support, with Attachments (CM-74049) 3,4

Correspondence dated December 10, 2007 from G. Lawrence Dillon, Esq., Assistant Attorney General 5


Correspondence dated December 7, 2007 from claimant (with attachment) 6

In his affidavit submitted in support of his cross-motion (see Item 4), claimant stated that he had re-served his claim following receipt of defendant’s motion to dismiss, and that such service had been timely made. Claimant, however, did not provide with his cross-motion papers acceptable documentation supporting this contention. The Court then adjourned both the motion and cross-motion for purposes of determining whether claimant had properly and timely served this claim upon the defendant.

Based upon the submissions from claimant (see Item 6) as well as the conditional agreement of the defendant to withdraw its motion (see Item 5), it is apparent to this Court that claimant has now timely served and filed his claim in accordance with the requirements of §11(a) of the Court of Claims Act, and defendant’s motion to dismiss (M-73973) must be denied.

With regard to claimant’s cross-motion seeking summary judgment, however, CPLR Rule 3212(a) permits a party to move for summary judgment “after issue has been joined” in the action. As noted at the outset of this decision and order, defendant’s motion for dismissal of the claim was a pre-answer motion, and since an answer has not yet been served and filed, issue has not been joined.

Additionally, claimant contends that defendant has not disputed the allegations set forth in his claim. However, since defendant has not yet served and filed its answer (pending the determination of this motion and cross-motion), it has not waived its opportunity to deny or dispute the allegations set forth therein.

Claimant’s cross-motion for summary judgment is, at best, premature and must be denied on that basis.

Based on the foregoing, therefore, it is

ORDERED, that defendant’s Motion No. M-73973 seeking dismissal of the claim is hereby DENIED; and it is further

ORDERED, that claimant’s Cross-Motion No. CM-74049 seeking summary judgment is also DENIED; and it is further

ORDERED, that pursuant to § 206.7(a) of the Uniform Rules for the Court of Claims, defendant shall have 40 days from the filing date of this decision and order to serve and file its answer to this claim.


January 22, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims