New York State Court of Claims

New York State Court of Claims

MINIX v. THE STATE OF NEW YORK, #2008-040-002, Claim No. 110439, Motion No. M-73967


Prisoner – Summary judgment motion – CPLR 3212 – by Claimant denied. Failure to include copy of pleadings. Also, failure to establish entitlement to judgment as a matter of law.

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:
Joshua J. Minix, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motion pursuant to CPLR 3212 seeking summary judgment is denied. The Claim alleges negligence, medical malpractice and product liability with respect to soap Claimant was provided by Defendant and subsequent treatment for skin irritation.

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of his Claim or the State’s Answer. The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]). Therefore, based upon the foregoing, the motion for summary judgment is denied.

Assuming, arguendo, the motion was considered by the Court, the request would still be denied. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853). This is Claimant’s second motion for summary judgment, and, as this Court found on the last motion, Claimant’s submission fails to establish entitlement to judgment as a matter of law (see Minix v State of New York, Claim No. 110439, Motion Nos. M-72319, CM-72418, November 16, 2006, McCarthy, J. [UID No. 2006-040-003]). Claimant has failed to establish with competent evidence that the State negligently manufactured the soap or that the State’s employees provided inadequate medical care. Claimant submitted as Exhibit A attached to his motion, a document labeled “Material Safety Data Sheet” for Corcraft Deodorant Soap, which he asserts he received from Defendant in response to a discovery request. Page 2 of the document reports that overexposure “may irritate skin of sensitive individuals”. Claimant asserts that he suffers from dry, itchy skin. However, he has failed to present any evidence in admissible form to establish the fact that his alleged condition: (1) was caused by use of the State soap; (2) that the soap was negligently manufactured; or (3) that the State’s medical personnel provided improper medical care. Claimant also submitted affidavits from four inmates with his reply papers. The inmates all aver that they use Corcraft soap and it dries their skin and makes their skin red and itchy. These affidavits are of very little value to the Court. There is no independent evidence that the reason these inmates suffer from dry, itchy skin is the Corcraft soap. All that has been presented are the general and conclusory statements by the affiants that the soap caused their condition. Claimant’s motion is, therefore, denied.

January 3, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant’s motion for summary judgment:

Papers Numbered

Notice of Motion “Motion for Renewal for
Summary Judgment” and Exhibits attached 1

Affidavit in Opposition and Exhibits
attached 2

Claimant’s Reply, Exhibits attached and
affidavits of inmates 3

Filed Papers: Claim and Answer