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 ). 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
; 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
; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman
v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). “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
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.