Claimant’s motion for summary judgment on liability for wrongful
confinement based on his retention in a Special Housing Unit for six days beyond
the expiration of his administrative penalty has been granted (see
Malik v State of New York
, UID # 2007-038-557, Claim No. 113091, Motion
No. M-72896, DeBow, J. [Sept. 10, 2007]), and an interlocutory judgment has been
entered. The trial of damages is scheduled for February 13, 2008. Claimant
filed the instant motion -- returnable on January 2, 2008 and extended to
January 9, 2008 upon the request of the defendant -- which the Court construes
as a motion requesting a subpoena compelling the attendance of psychologist
Marie Carrie at trial.
At the threshold, defendant contends that the Court should not entertain this
motion because claimant failed to serve a notice of motion along with his motion
papers “as required by Rule 2214 of the CPLR, and by 22 NYCRR §§
206.8 and 206.9" (Krenrich Affirmation, at ¶ 3). While a court may lack
jurisdiction to entertain a motion when the motion papers were not timely served
(see Morabito v Champion Swimming Pool Corp., 18 AD2d 706 [2d Dept
1962]; cf. J.A. Valenti Elec. Co. v Power Line Constructors, Inc.,
123 AD2d 604 [2d Dept 1986]), and a court may properly decline to consider a
cross motion when the purported cross-movant does not comply with the notice
requirement of CPLR 2215 (see Matter of Briger, 95 AD2d 887 [3d
Dept 1983]), defendant cites no authority holding that claimant’s failure
to include with his motion papers a notice pursuant to CPLR 2214 deprives the
Court of discretion to consider the motion. Moreover, while section 206.8(a) of
the Uniform Rules for the Court of Claims provides that no motion shall be filed
with the Court unless a notice of motion is served, the Court waives that
requirement in this case (see 22 NYCRR § 206.1 [b]). Claimant is a
pro se litigant, the relief sought in his motion is plainly discernible
from the papers he has submitted, defendant was timely aware of all the
information that would have been recited in the notice of motion (see
CPLR 2214 [a]) and defendant has, in fact, opposed the motion by submission
(cf., Siegel, Practice Commentaries, McKinney’s Cons Laws of NY,
Book 7B, CPLR C2215:1). Thus, the Court will consider the motion
notwithstanding the absence of a notice of motion.
Claimant asserts that Ms. Gonyea authored an examination report, dated August
1, 2006, that appears to address claimant’s mental health status.
Defendant objects to claimant’s request on the ground that Ms.
Gonyea’s testimony at a trial on damages would be irrelevant because she
allegedly examined claimant several months prior to his wrongful confinement.
While an objection to relevancy may be raised at trial, it is insufficient to
defeat claimant’s request for a subpoena compelling her appearance. This
is particularly so because claimant’s mental status in July or August of
2006 is not necessarily irrelevant to damages he may have sustained in November
of 2006 (cf. Evans v Club Mediteranee, S.A.
, 184 AD2d 277 [1st
To the extent claimant’s motion seeks summary judgment on the issue of
damages, he has not submitted any evidence in admissible form supporting such
relief (see Zuckerman v City of New York, 49 NY2d 557, 562
It is, ORDERED, that claimant’s Motion No. M-74308 is GRANTED to the
extent of directing the appearance of psychologist Carrie Gonyea, and is DENIED
in all other respects, and it is further
ORDERED, that defendant shall, not later than February 1, 2008, submit to the
Court a letter stating its intention to produce Ms. Gonyea at trial without
subpoena, or, in the alternative, defendant shall, not later than February 1,
2008, submit for the Court’s execution a subpoena directing Ms.
Gonyea’s appearance at the trial of damages at Clinton Correctional
Facility, Dannemora, New York at 10:00 a.m. on February 13, 2008.
(1) Decision and Order, dated September 10, 2007;
(2) Interlocutory Judgment, entered November 8, 2007;
(3) Claimant’s Motion, with Affidavit of Service, dated November 7, 2007,
with Exhibit A;
(4) Correspondence of Claimant, with “Pro se Affidavit Service”,
dated November 16, 2007;
(5) Correspondence of Nancy Schulman, Principal Law Clerk, dated December 13,
(6) Correspondence of Michael T. Krenrich, AAG, dated December 21, 2007;
(7) Affirmation in Opposition of Michael T. Krenrich, AAG, dated January 3,
(8) “Affirmation Objection” of Abdul-Jabbor Malik, with proof of
service dated January 6, 2008.