New York State Court of Claims

New York State Court of Claims

ORTIZ v. STATE OF NEW YORK, #2009-040-018, Claim No. 113146, Motion Nos. M-75385, CM-75794


Synopsis


Cross-motions for summary judgment denied as neither side provided copies of all pleadings.

Case Information

UID:
2009-040-018
Claimant(s):
MARCUS ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113146
Motion number(s):
M-75385
Cross-motion number(s):
CM-75794
Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
FRANZBLAU DRATCH, P.C.By: Brian M. Dratch, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Joan Matalavage, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 26, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the State’s motion for summary judgment dismissing the Claim is denied and Claimant’s cross-motion for summary judgment as to liability is also denied.

The Claim, which was filed in the office of the Clerk of the Court on December 27, 2006, asserts that Defendant was negligent in failing to prevent a fellow inmate from assaulting Claimant at Great Meadow Correctional Facility located in Comstock, New York.

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 its motion, Defendant did not submit a copy of its 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 State’s motion for summary judgment is denied.

Similarly, Claimant’s cross-motion is denied as Claimant did not submit a copy of his Claim or the State’s Answer.

In the Preliminary Conference Order signed by the Court on May 9, 2007, setting the discovery time table for this matter, the Court directed that all motions for summary judgment were to be made no later than forty-five (45) days after the filing of Claimant’s Note of Issue and Certificate of Readiness. The Note of Issue, in turn, was filed with the Clerk of the Court on July 15, 2008. The parties are reminded, therefore, that the deadline for making any such motions has now passed and the trial for the liability phase of this matter is scheduled for July 14, 2009.


January 26, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion for summary judgment dismissing the Claim and Claimant’s cross-motion for summary judgment as to liability:

Papers Numbered


Notice of Motion, Affidavit in Support
and Exhibits Attached 1


Notice of Cross-Motion, Affirmation in

Support of Cross-Motion and in

Opposition to Defendant’s Motion
and Exhibits Attached 2


Affidavit in Opposition to Cross-Motion
and Exhibit Attached 3

Reply Affirmation 4


Filed Papers: Claim, Answer