Claimant's motion, insofar as it can be construed as a motion to dismiss jurisdictional defenses or a motion seeking summary judgment, denied for failure to append a copy of the pleadings.
|Claimant short name:||MOREAU|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||EMILE MOREAU, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for items of property that were allegedly damaged when his cell at Green Haven Correctional Facility (CF) flooded on July 4, 2014. Upon being informed that the trial of this claim was scheduled to be conducted on October 31, 2019, claimant filed this motion, which he styles as a "Motion to support Claimant's claim . . . filed [p]ursuant to Section 10 and 11 of the Court of Claims [Act]" and demands "the Judgment against the Defendant in the sum of $1000.00" (Affidavit in Support of Claim, ¶¶ 15-16). Defendant has not opposed the motion.
To the extent claimant's motion is directed to the jurisdictional requirements set forth in Court of Claims Act § 10 (9) with respect to the timeliness of the claim (see Affidavit in Support of Claim, ¶¶ 7-9), and the pleading requirements set forth in Court of Claims Act § 11 (b) (see id. ¶¶ 3-6, 10-11, 14), no affirmative relief can be granted inasmuch as defendant has not, to date, challenged the jurisdictional sufficiency of the claim on those grounds. In the absence of a pending motion to dismiss by defendant, the Court cannot render a determination with respect to the timeliness of the claim or the sufficiency of the pleadings, and the instant motion must be denied.. Insofar as claimant's motion "to support [his] claim" (id. at ¶ 15) can be read as a motion for summary judgment, CPLR 3212 (b) provides in pertinent part that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof" (emphasis added). It is well settled that where, as here, a claimant fails to include the pleadings in support a motion for summary judgment, the motion must be denied, regardless of the merits of the motion (see Mieles v Tarar, 100 AD3d 719, 720 [2d Dept 2012]; Ahern v Shepherd, 89 AD3d 1046, 1047 [2d Dept 2011]; Matsyuk v Konkalipos, 35 AD3d 675, 676 [2d Dept 2006]).
Accordingly, it is
ORDERED, that claimant's motion number M-94446 is DENIED.
September 20, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 125396, filed December 15, 2014;
2. Correspondence of Brian M. Wilson, Assistant Court Analyst, dated July 2, 2019;
3. Correspondence of Kimberley Broad, Principal Law Clerk, dated July 10, 2019;
4. Moreau Correspondence, dated July 20, 2019;
5. Affidavit in Support of Claim #125396, sworn to July 20, 2019, with unenumerated exhibits;
6. Affidavit of Service of Emile Moreau, sworn to July 20, 2019.
1. The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.