Opinion
# 2021-032-008 Claim No. 134891 Motion No. M-95826
01-13-2021
JOSHUA DEMELLIER v. STATE OF NEW YORK
Joshua DeMellier, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Motion for summary judgment denied for claimant's failure to attach a copy of the pleadings.
Case information
| UID: | 2021-032-008 |
| Claimant(s): | JOSHUA DEMELLIER |
| Claimant short name: | DEMELLIER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134891 |
| Motion number(s): | M-95826 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Joshua DeMellier, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant bailment claim on June 8, 2020. Claimant now moves for summary judgment. Defendant opposes the motion.
Defendant argues that the motion should be dismissed on procedural grounds because claimant failed to include a copy of the Answer with the motion as required by CPLR 3212 (b). CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings. The failure of claimant to include a copy of the answer renders the motion procedurally defective (Washington Realty Owners, LLC v 260 Washington St., LLC, 105 AD3d 675, 675 [1st Dept. 2013]). Therefore, the Court must deny claimant's motion, regardless of its merits (Tudisco v Mincer, 126 AD3d 1501 [4th Dept. 2015], quoting D.J. Enterprises of WNY, Inc. v Benderson, 294 A.D.2d 825 [4th Dept. 2002]; see also Brownside v State of New York, 157 AD3d 1071, 1072 [3d Dept. 2018] [summary judgment motion properly denied where claimant provided claim in reply papers but failed to include the answer]; Senor v State of New York, 23 AD3d 851, 852 [3d Dept. 2005] [summary judgment motion properly denied where claimant failed to include a copy of the pleadings]).
Based upon the foregoing, claimant's motion for summary judgment (M-95826) is DENIED.
January 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Undated Notice of Motion; Affidavit in Support of Motion, sworn to by claimant on August 15, 2020, with Attachments. 2. Affirmation in Opposition, affirmed by Ray A. Kyles, AAG on September 29, 2020, with Exhibit A annexed thereto.