Opinion
# 2020-040-044 Claim No. 133504 Motion No. M-95882
12-02-2020
MALCOLM WASHINGTON v. THE STATE OF NEW YORK
Malcolm Washington, Pro Se No appearance
Synopsis
Pro se Claimant's Motion for summary judgment denied. Motion not served upon Defendant.
Case information
| UID: | 2020-040-044 |
| Claimant(s): | MALCOLM WASHINGTON |
| Claimant short name: | WASHINGTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133504 |
| Motion number(s): | M-95882 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Malcolm Washington, Pro Se |
|---|---|
| Defendant's attorney: | No appearance |
| Third-party defendant's attorney: | |
| Signature date: | December 2, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for summary judgment in his favor, pursuant to CPLR 3212, is denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on August 16, 2019, alleges that Claimant has not received proper and adequate medical care for his back pain at Franklin Correctional Facility. He asserts that his Claim accrued on December 10, 2018.
Pursuant to CPLR 2214(b), motion papers must be served on one's adversary. While the Movant has submitted an affidavit of service with his Motion papers, he has not submitted to the Court an affidavit of service establishing that he served his Motion on Defendant. His affidavit of service indicates that he served the Attorney General, however, he did not mail the papers to the proper address. He mailed them to the Court's address, P.O. Box 7344, Capitol Station, Albany, New York, 12224, not to the Attorney General. The Court notes that Defendant has not submitted any papers in opposition to the Motion.
Based upon the record before the Court, Movant has failed to serve his Motion papers upon Defendant. Thus, the Court cannot consider the Motion.
In addition, 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. 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 (Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; 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]).
Therefore, based upon the foregoing, Claimant's Motion for summary judgment is denied.
December 2, 2020
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, Exhibit Attached, and Affidavit of Service 1 Filed Papers: Claim