New York State Court of Claims

New York State Court of Claims

CRANDALL v. STATE UPSTATE CORRECTIONAL FACILITY, #2008-038-607, Claim No. 108866, Motion No. M-75202


Motion for partial summary judgment and to dismiss affirmative defenses denied. Notice of motion did not include such relief, and proof of entitlement to such relief was lacking

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: Kathleen M. Resnick, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This bailment claim seeks $442.00 in damages for property lost due to the alleged negligence of defendant at Upstate Correctional Facility. The claim is scheduled for trial on August 19, 2008. Claimant, pro se, has submitted a notice of motion designated “Motions to Produce Documents to Court” and “Dispositive Motions to Show Proof of Property lost.”[1] Defendant has not submitted any opposition to the motion. That part of the motion addressed to documents appears to request permission to present unidentified documents to the Court. This motion is unnecessary, and will be denied. Claimant may present documents to the Court at the time of trial, at which time the Court will consider the admissibility of any proffered documents.

To the extent that the motion requests subpoenas for witnesses for trial, the motion cannot be granted because claimant has not identified any proposed witnesses for whom he seeks a subpoena.

Claimant’s motion for summary judgment pursuant to CPLR 3212(a) will be denied. It is well established that a movant for summary judgment must demonstrate, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]), and when a movant fails to demonstrate entitlement to summary judgment as a matter of law, the motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Sauzo v Weiss, 11 AD3d 220, 221 [1st Dept 2004]). Claimant has submitted no proof in admissible form that would permit consideration of his entitlement to judgment as a matter of law.

To the extent that claimant seeks dismissal of “the counter claims” and defendant’s affirmative defense, such relief will not be granted as the motion is not noticed as such. In fact, the verified answer contains no counterclaims. Further, even if the motion to dismiss defendant’s affirmative defense had been properly noticed, CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” Claimant must come forward with proof sufficiently demonstrating that a defense is without merit (see Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]; Gagne v State of New York, UID # 2007-045-013, Claim No. 109628-A, Motion No. M-73091, Lopez-Summa, J. [July 19, 2007]; Arquette v State of New York, 190 Misc 2d 676, 688 [Ct Cl 2001]). Here, claimant has not submitted any evidence nor does he make any arguments that would entitle him to such relief.

In sum, it is

ORDERED, that Motion No. M-75202 is DENIED in all respects.

July 21, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No.108866, filed February 4, 2004;

(2) Verified Answer, filed March 12, 2004;

(3) Notice of Motions, dated June 27, 2008, with attachments and exhibits.

[1]. Claimant’s notice of motion states that the motion is “taken [pursuant to] CPLR 3212(a),” and the supporting papers indicate that claimant is seeking “partial summary judgment.” In addition, the papers seek dismissal of the “counter claim” and defendant’s statute of limitations defense, even though the notice of motion does not state that the motion seeks such relief.