New York State Court of Claims

New York State Court of Claims

MITCHELL v. STATE OF NEW YORK, #2009-042-507, Claim No. 111757, Motion No. M-76207


Synopsis


This is a motion brought by the claimant for partial summary judgment. Defendant opposed the motion on a number of grounds, the foremost of which is the failure to comply with CPLR Rule 3212 (b). The court finds that claimant fails to include the pleadings in support of his motion. Claimant’s motion is denied.

Case Information

UID:
2009-042-507
Claimant(s):
WILLIAM MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111757
Motion number(s):
M-76207
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
WILLIAM MITCHELL, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers[1] on claimant’s motion for partial summary judgment:
  1. Notice of Motion, filed February 3, 2009
  2. Affidavit of William Mitchell, pro se, sworn to January 30, 2009
  3. Opposition affirmation of Joel L. Marmelstein, Esq., dated February 23, 2009
____________________________________


This matter comes before the court on claimant’s motion for partial summary judgment on liability. Defendant opposes the motion on a number of grounds, foremost of which is that the moving papers fail to comply with CPLR Rule 3212 (b).

It is unnecessary to address either the merits of claimant’s motion or the other arguments raised by defendant, as the aforementioned ground for opposition is dispositive of claimant’s motion.

CPLR Rule 3212 (b) provides, in relevant part, that:

[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.


(emphasis added).


The failure to include the pleadings in support of this motion mandates the denial of the motion (Deer Park Associates v Robbins Store, 243 AD2d 443; Niles v County of Chautauqua, 285 AD2d 988; Gallagher v TDS Telecom, 280 AD2d 991).

Claimant’s motion for partial summary judgment is denied in its entirety.



March 23, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1].This motion was returnable on March 4, 2009. The court received a reply affidavit from claimant on March 6, 2009. The reply affidavit is rejected as untimely. However, had it been considered by the Court, its contents would not have altered the motion’s outcome.