New York State Court of Claims

New York State Court of Claims

MARSHALL v. THE STATE OF NEW YORK, #2008-016-028, Claim No. 112493, Motion No. M-74372


Synopsis



Case Information

UID:
2008-016-028
Claimant(s):
STEVEN MARSHALL
Claimant short name:
MARSHALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112493
Motion number(s):
M-74372
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Steven Marshall, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 5, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Steven Marshall moves for summary judgment in his favor. In his claim, Mr. Marshall, an inmate at Sullivan Correctional Facility, alleges that defendant was negligent in failing to send out two “oversize legal mail parcels” that he had requested be sent to the Appellate Division, Second Department and the Kings County District Attorney’s Office. Mr. Marshall further alleges that because the packages were not mailed, he missed the deadline to apply for permission to appeal the denial of a pro se CPLR 440.10 motion that he had filed in his underlying criminal case. A review of the parties’ submissions indicates that there is an issue of fact as to whether claimant’s legal mail was in fact sent out. See, e.g., exhibit B to the February 13, 2008 affirmation of James E. Shoemaker. In view of such issue of fact, summary judgment is not appropriate. See CPLR 3212(b).

Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-74372 be denied.


June 5, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant’s notice of motion with affidavit in support and exhibits A through Q; defendant’s affirmation in opposition with the February 13, 2008 affidavit of Lane Kortright and exhibits A and B; and claimant’s reply affidavit with exhibits A through D.