Opinion
# 2014-038-528 Claim No. 121841 Motion No. M-84804
06-11-2014
WADDELL SMITH v. THE STATE OF NEW YORK
WADDELL SMITH, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied. Motion unsupported by pleadings, claimant's affidavit and verifications not sworn in accordance with New York law, and motion unsupported by other documents in admissible form.
Case information
| UID: | 2014-038-528 |
| Claimant(s): | WADDELL SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121841 |
| Motion number(s): | M-84804 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | WADDELL SMITH, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 11, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, commenced this claim alleging that he sustained injuries as a result of defendant's alleged negligence in failing to protect claimant's medical privacy. Claimant moves for summary judgment on the claim. Defendant opposes the motion on the grounds that claimant has failed to include a copy of the pleadings with his motion, that claimant did not support his motion with an affidavit, and that he has not established his entitlement to summary judgment.
"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" (CPLR 3212 [b]). While omission of the pleadings generally requires summary denial of the motion without prejudice to renewal of the motion (see Wider v Heller, 24 AD3d 433 [2d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; see also Senor v State of New York, 23 AD3d 851 [3d Dept 2005]), such an omission may be overlooked where the record is "sufficiently complete" (see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 [1990]; see also Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). Even if the Court were to exercise its discretion to overlook the movant's failure to submit them with the motion (see Bruno v State of New York, UID No. 2012-038-529 [Ct Cl, DeBow, J., Apr. 23, 2012]), the motion would be denied because claimant has not complied with the further requirement of CPLR 3212 (b) that the motion be supported by affidavit.
Claimant has submitted a document that he has denominated and styled as an "affidavit in support of summary judgment," which has attached to it a "verification," neither of which is properly notarized or sworn (see Diaz v Tumbiolo, 111 AD3d 877, 878-879 [2d Dept 2013]; Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U] [Dist Ct, Suffolk County 2012]; Concourse Rehabilitation & Nursing Ctr., Inc. v Novello, 24 Misc 3d 1222[A], 2009 NY Slip Op 51549 [U] [Sup Ct, Bronx County 2009]). Rather both the "affidavit" and "verification" contain a statement pursuant to 28 USCA § 1746 that claimant "declare[s] under the penalty of perjury that the above is true and correct" (Smith "Affidavit," dated December 18, 2013; Smith "Verification," dated December 18, 2013). The federal statute cited in claimant's declarations provides in pertinent part that such a declaration is a permissible substitute for a sworn or verified instrument or affidavit that may be required by any federal law or authority; it does not apply to matters brought in State court (see e.g. Wigfall v State of New York, UID No. 2004-019-599 [Ct Cl, Lebous, J., Dec. 7, 2004]). In New York State practice, only non-party attorneys, physicians, osteopaths and dentists are permitted to submit an affirmation stating that matters are true under the penalty of perjury in lieu of an affidavit (see CPLR 2106). Claimant has not established that he is an individual authorized to submit an affirmation pursuant to CPLR 2106, and his status as a party precludes his use of an affirmation in this claim. Claimant's assertion that his verified claim may substitute for an affidavit (see CPLR 105 [u]) is unpersuasive, as the "verification" of the claim suffers the same defect as the "affidavit" and "verification" submitted with the motion inasmuch as it bears the federal declaration but is otherwise unsworn.
Finally, although CPLR 3212 (b) requires an affidavit, "it would appear that if other sworn documents are submitted and contain the requisite proof, such as a deposition, an affidavit will not be indispensable as the source of the basic proof required" in support of a motion for summary judgment (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:15). As an initial matter, the motion papers that were filed by claimant contain no exhibits, notwithstanding the assertion in claimant's unsworn "affidavit of service" of the motion that Exhibits "B thru [sic] K" were served on the Clerk of the Court. Exhibits that were apparently served on the Attorney General are part of the record on this motion because defendant's opposition papers include the motion papers that claimant served on Attorney General (see Rotondi Affirmation, at Exhibit A). However, those exhibits are all unsworn, and thus they do not provide competent evidence upon which the Court may conclude that claimant has met his prima facie burden of establishing his entitlement to judgment as a matter of law. Further, the motion is unsupported by a sworn attestation that there is no meritorious defense to the claim, "a pro forma recitation exacted of all summary judgment movants under CPLR 3212(b)" (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:15 at 26).
Again, the "affidavit of service" is not sworn, but rather contains the 28 USCA § 1746 statement.
Claimant noted in correspondence to the Clerk of the Court dated March 12, 2014 that the Exhibits were not part of the motion that he filed with the Court and requested that the Court disregard the omission being that there was no prejudice to defendant. The Court notes that Exhibit I does not appear to be among the Exhibits that were submitted by defendant in its opposition.
In sum, even if claimant's failure to include the pleadings with his motion papers is overlooked, claimant's motion for summary judgment is plainly lacking in merit because it is not supported by an affidavit or other admissible sworn proof. In light of the inadequacy of claimant's papers and the prima facie lack of merit to the motion, defendant's remaining arguments need not be addressed. Accordingly, it is
ORDERED, that claimant's motion M-84804 is DENIED.
June 11, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 121841, filed October 9, 2012; (2) "Verification" of Claim Number 121841, dated September 28, 2012; (3) Notice of Motion for Summary Judgment, dated December 18, 2013; (4) "Affidavit" of Waddell Smith in Support of Summary Judgment, dated December 18, 2013; (5) "Verification" of Waddell Smith, dated December 18, 2013; (6) "Affidavit of Service" of Waddell Smith, dated December 18, 2013; (7) Affirmation of Anthony Rotondi, AAG, in Opposition to Claimants's Motion for Summary Judgment, dated January 23, 2014; (8) Reply in Opposition to Defendant's Affirmation in Opposition, dated January 29, 2014; (9) Correspondence of Waddell Smith to Robert T. DeCataldo, Clerk of the Court of Claims, dated March 12, 2014.