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 the Commonwealth of Massachusetts because of his
This is the second time that Claimant has sought summary judgment. By Decision
and Order dated May 18, 2009, this Court denied Claimant’s previous motion
for summary judgment on the basis that the motion was not supported by a copy of
the pleadings as required by CPLR 3212(b). The Court further stated that, even
if the pleadings had been submitted, Claimant failed to establish entitlement to
judgment as a matter of law (Romero v State of New York, Ct Cl, Claim No.
115349, Motion No. M-76393, McCarthy, J. [UID No. 2009-040-042]).
CPLR 3212(a) provides that any party “may move for summary judgment in
any action, after issue has been joined; provided however, that the court may
set a date after which no such motion may be made, such date being no earlier
than thirty days after the filing of the note of issue. If no such date is set
by the court, such motion shall be made no later than one hundred twenty days
after the filing of the note of issue, except with leave of court on good cause
Here, Claimant filed his note of issue and certificate of readiness with the
Clerk of the Court on February 9, 2009. Following a telephonic Preliminary
Conference held with the parties, the Court issued a Daily Report, dated
October 1, 2008, which provided a date for the completion of discovery and a
date for the filing of the note of issue and certificate of readiness. The
Court further directed that “[a]ll motions for summary judgment shall be
served and filed no later than forty-five (45) days after the filing of the Note
of Issue and Certificate of Readiness.” Therefore, Claimant’s
motion for summary judgment needed to be made within 45 days of February 9,
2009, absent leave of court for good cause shown (CPLR 3212[a]). His original
summary judgment motion was timely made. The instant motion was filed with the
Clerk of the Court on July 17, 2009, some 158 days after the filing of the Note
of Issue and Certificate of Readiness.
Claimant asserts, in his affidavit submitted in support of his motion, that his
prior motion “was denied without prejudice to renewal” (Romero
Affidavit in Support, ¶ 3). Claimant cites to the case of Krasner v
Transcontinental Equities (64 AD2d 551, 551 [1st Dept 1978]) to support his
position. However, in Krasner, the Court specifically stated “...
motion denied in all respects without prejudice to renewal upon proper papers
... .” The Court has reviewed its prior decision and there is no language
contained therein that states that the motion is denied without prejudice to
Thus, the 45-day time limit imposed by the Court may only be extended by the
Court “on good cause shown” (CPLR 3212[a]). As the Court of Appeals
stated in Miceli v State Farm Mut. Auto. Ins. Co.
(3 NY3d 725, 726
): “[a]s we made clear in
. . . statutory time frames
– like court-ordered time frames (see Kihl v Pfeffer
, 94 NY2d 118
) – are not options, they are requirements, to be taken seriously by
The Appellate Division, Third Department stated in Coty v County of Clinton
(42 AD3d 612, 614 ) that the Court of Appeals in Miceli v State
Farm Mut. Auto. Ins. Co. (supra) “held that ‘ “good
cause” in CPLR 3212(a) requires a showing of good cause for the delay in
making the motion – a satisfactory explanation for the untimeliness
– rather than simply permitting meritorious, nonprejudicial filings,
however tardy’ (Brill v City of New York [2 NY3d 648], supra
at 652; see Perini Corp. v City of New York (Department of Envtl.
Protection), 16 AD3d 37, 39 [1st Dept 2005]; Thompson v New York City Bd.
of Educ., 10 AD3d 650, 651 [2d Dept 2004]).”
There is no question that the motion was made well beyond the 45-day period the
Court imposed and, indeed, the 120-day statutory period following filing of the
Note of Issue and Certificate of Readiness. Claimant offers no excuse for his
failure to comply with the Court-imposed deadline, or even the CPLR 3212(a) time
period, asserting only that his motion is meritorious. This is precisely the
issue that the Court of Appeals addressed in Brill v City of New York
(supra) and Miceli v State Farm Mut. Auto. Ins. Co.
(supra). Claimant’s motion is denied on the basis it is
untimely, without addressing the merit of the motion.