New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2008-040-030, Claim No. 112865, Motion No. M-74810


Pro se
Claimant’s motion for summary judgment denied. No pleadings attached. In addition, failed 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:
Abdul-Jabbor Malik, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 13, 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 that Defendant denied Claimant his religious freedom to practice his faith during Ramadan.

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, 94 [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, 341 [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, 852 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729, 730 [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 eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; 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” (Alvarez v Prospect Hosp., 68 NY2d 320, supra at 324; see 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 Malik v State of New York, Claim No. 112865, Motion No. M-72506, December 19, 2006, McCarthy, J. [UID No. 2006-040-004]). Claimant has failed to establish with competent evidence that the State violated his religious rights. He has submitted only his own affidavit.

The Court notes that Claimant has requested a jury trial in his motion papers. The State’s waiver of sovereign immunity contained in the Court of Claims Act does not include the right to a jury trial Brennan v State of New York, 64 Misc 2d 213, 218 [Ct Cl 1970], modified on other grounds 39 AD2d 803 [3d Dept 1972]). The right to sue the State is a privilege and if a party elects to pursue his or her remedy in this forum he or she waives the right to a jury trial (Page v La Buzzetta, 96 AD2d 694, 695 [3d Dept 1983]). Claimant’s motion is, therefore, denied.

May 13, 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, “Affirmation” in Support 1

Filed Papers: Claim and Answer