New York State Court of Claims

New York State Court of Claims

ROMERO v. THE STATE OF NEW YORK, #2009-040-042, Claim No. 115349, Motion No. M-76393


Pro se
claimant’s motion for summary judgment pursuant to CPLR 3212(d) denied.

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:
Dr. Israel Romero, Pro Se
Defendant’s attorney:
Attorney General of the New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 18, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motion for summary judgment in his favor, pursuant to CPLR 3212(a), is denied.

This pro se Claim, which was filed in the office of the Clerk of the Court on June 9, 2008, asserts that Defendant was negligent in failing to properly supervise the New York State Police, which sent a false report to the Federal Bureau of Investigation (FBI). The FBI then reported to the South Carolina Department of Education that Claimant was convicted of two misdemeanors. It is alleged that the FBI report was updated on March 24, 2008. The report was sent as part of Claimant’s application for an educator’s license in South Carolina. It is asserted that the State Police furnished the FBI with incorrect information because, on July 1, 1998, the New York State Court of Appeals reversed the conviction and dismissed the indictment against Claimant. The indictment arose from an incident for which Claimant was arrested on July 14, 1995. Claimant asserts that, upon dismissal of the indictment, the record was closed and sealed by order of the Schenectady County Court. Claimant further asserts that he received an educator’s license on August 5, 2002 from Massachusetts because of his clean record.

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 to the Claim. 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]). In addition, CPLR 3212(b) requires that the motion be supported by “available proof.” Claimant submitted his own affirmation and several exhibits in support of his motion but did not present any evidentiary proof that the Schenectady County Court ordered the State Police to close and seal the file and to advise any other law enforcement or reporting agency in the country of that fact (Romero Affidavit, ¶ 5). “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 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).

Therefore, based upon the foregoing, Claimant’s motion for summary judgment is denied.

May 18, 2009
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, Affidavit in Support
and Exhibits attached 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer