Opinion
# 2017-040-060 Claim No. 126075 Motion No. M-90136
05-24-2017
JASON EARL CAMPO v. THE STATE OF NEW YORK
Jason Earl Campo, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Pro se Claimant's Motion for summary judgment pursuant to CPLR § 3213 denied as the section is inapplicable to this matter.
Case information
| UID: | 2017-040-060 |
| Claimant(s): | JASON EARL CAMPO |
| Claimant short name: | CAMPO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126075 |
| Motion number(s): | M-90136 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Jason Earl Campo, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 24, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of Claimant, Jason Earl Campo, appearing pro se, for summary judgment pursuant to CPLR § 3213 is denied.
This pro se Claim was filed in the office of the Clerk of the Court on May 1, 2015 and alleges that, on August 17, 2013, while incarcerated at Franklin Correctional Facility (hereinafter, "Franklin"), Claimant re-injured his right shoulder working at his job at Franklin while lifting equipment out of the recreational yard shack that is kept there for the inmates. He asserts that he had surgery on his right shoulder on April 4, 2013, four months prior to this injury. He further states that Franklin received documentation regarding the disability to his shoulder from the county jail where he was incarcerated prior to being transferred to Franklin. The Claim seeks damages in the amount of $2,500,000.00.
Claimant moves pursuant to CPLR § 3213 for summary judgment in lieu of complaint. CPLR 3213 applies, by its terms, to actions "based upon an instrument for the payment of money only or upon any judgment … ." This Claim sounds in negligence and/or medical malpractice, not an instrument for the payment of money. In addition, no judgment has been entered to date. Accordingly, CPLR § 3213 is inapplicable, and Claimant's Motion is denied.
If Claimant intended this to be a Motion for summary judgment pursuant to CPLR 3212, it also fails. 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 the Claim or Answer. The failure to include all the 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]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "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 eliminate 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., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
However, assuming, arguendo, that Claimant had supported his Motion by including a copy of all the pleadings, the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law. While he submitted exhibits establishing that he had surgery on April 23, 2013 and February 25, 2014 (Motion, Ex. B), and that he reported the information regarding the April 2013 surgery to medical staff on June 18, 2013, at Downstate Correctional Facility when he entered State custody (Motion, Ex. A), he did not submit any proof or documentation that his work activities were limited in any way by medical staff or that the failure to limit his activities was improper.
Therefore, based upon the foregoing, Claimant's Motion for summary judgment is denied.
May 24, 2017
Albany , New York
CHRISTOPHER J. McCARTHY
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, & Exhibits attached 1 Affirmation in Opposition 2 Claimant's Reply 3 Filed Papers: Claim, Answer