New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2008-038-582, Claim No. 113091, Motion No. M-74308


Failure to include notice of motion (CPLR 2214) on motion seeking a subpoena compelling a witness’ attendance at trial is not fatal to motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

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 Dept 1992]).[2]

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 [1980]).

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.

January 22, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(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, 2007;

(6) Correspondence of Michael T. Krenrich, AAG, dated December 21, 2007;

(7) Affirmation in Opposition of Michael T. Krenrich, AAG, dated January 3, 2008;

(8) “Affirmation Objection” of Abdul-Jabbor Malik, with proof of service dated January 6, 2008.

[1]. Claimant’s handwritten submissions appear to refer to the psychologist as “Carrie Gonya” and “Marie Carrie,” while defendant’s submissions refer to her as “Marrie Larrie” and “Marrie Carrie.” Because the excerpt from the psychologist’s report that is appended to claimant’s motion is signed by “Carrie Gonyea,” this decision will refer to her as Ms. Gonyea. However, if defendant knows her to be of a different name, it is directed to proceed upon that knowledge.
[2]. It is necessary to comment upon claimant’s reference in his reply submission to Ms. Gonyea as an “expert witness.” This decision and order directing Ms. Gonyea’s appearance at trial should not be construed as a ruling on whether Ms. Gonyea may offer opinions as an expert witness at trial (see CPLR 3101[d][1]; CPLR 4515).