New York State Court of Claims

New York State Court of Claims

ROMERO v. THE STATE OF NEW YORK, #2009-040-077, Claim No. 115349, Motion No. M-76968


Claimant’s second Motion for Summary Judgment denied as untimely made.

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:
Israel Romero, 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:
October 13, 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 the Commonwealth of Massachusetts because of his clean record.

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 shown.”

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 renewal.

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 [2004]): “[a]s we made clear in Brill[1] . . . statutory time frames – like court-ordered time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) – are not options, they are requirements, to be taken seriously by the parties.”

The Appellate Division, Third Department stated in Coty v County of Clinton (42 AD3d 612, 614 [2007]) 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.

October 13, 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

Claimant’s Reply and Exhibits attached 3

Filed Papers: Claim, Answer

[1].Brill v City of New York (2 NY3d 648 [2004])