Opinion
# 2021-040-015 Claim No. 133504 Motion No. M-96375
04-05-2021
MALCOLM WASHINGTON v. THE STATE OF NEW YORK
Malcolm Washington, Pro Se LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Pro se Claimant's Motion for Summary Judgment denied as Claimant did not serve Motion on Defendant.
Case information
| UID: | 2021-040-015 |
| 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-96375 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Malcolm Washington, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 5, 2021 |
| 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.
While the Claim states in Paragraph 4 that it accrued on December 10, 2019, obviously, this is a typographical error, as the Claim was verified on August 1, 2019 and filed on August 16, 2019.
Pursuant to CPLR 2214(b), motion papers must be served on one's adversary. Claimant has submitted an affidavit of service with his Motion papers, however, the affidavit of service does not establish that he served his Motion on Defendant. While his affidavit of service indicates that he served the Attorney General, 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 states in opposition to the Motion that it was not served with the Motion papers (Affirmation in Opposition of Christina Calabrese, Esq., Assistant Attorney General [hereinafter, "Calabrese Affirmation"], ¶ 3).
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(a) provides that a motion for summary judgment may be made after issue has been joined, i.e., after a claimant has served and filed a claim and the defendant has served and filed an answer. Here, Defendant has not yet served and filed an answer (Calabrese Affirmation, ¶ 5), as Defendant asserts that it has not been served with a Claim (Ex. A attached to Calabrese Affirmation, Affidavit of Debra A. Mantell, ¶ 18) but only a Notice of Intention to File a Claim ( id., ¶¶ 5, 17). Because issue has not been joined, this Motion is premature (see CPLR 3212[a]).
Therefore, based upon the foregoing, Claimant's Motion for summary judgment is denied.
April 5, 2021
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, Exhibits Attached, & Affidavit of Service 1 Affirmation in Opposition & Exhibit Attached 2 Letter from Claimant dated February 22, 2021 3 Filed Papers: Claim