Opinion
# 2013-009-028 Claim No. 122435 Motion No. M-83274
09-30-2013
BRIAN TUITT v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment was denied, without prejudice, based upon claimant's failure to include a copy of the pleadings with his motion papers.
Case information
UID: 2013-009-028 Claimant(s): BRIAN TUITT Claimant short name: TUITT Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122435 Motion number(s): M-83274 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. Claimant's attorney: BRIAN TUITT, PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: G. Lawrence Dillon, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: September 30, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant has brought this motion seeking an order granting him summary judgment on his claim with respect to both liability and damages.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affidavit in Support, with Exhibits 1, 2
Affirmation in Opposition 3
"Response to Opposition" 4
In his claim, claimant seeks damages in the amount of $112.50 for the loss of certain items of his personal property which occurred when he was transferred from Marcy Correctional Facility to Mid-State Correctional Facility.
As set forth in his affidavit in support of this motion, claimant states that he was transferred from Marcy Correctional Facility to Mid-State Correctional Facility on December 28, 2012. Claimant further states that prior to this transfer, he filled out his property transfer form and indicated on that form that he would be responsible for the payment of any postage to forward packages, since he had recently ordered certain perishable food items from W.A. Bean & Sons, Inc.
Claimant further states that this package was delivered to Marcy Correctional Facility, but rather than being forwarded to him at Mid-State Correctional Facility, it was returned to the vendor. Claimant also states that since the items were perishable, they were destroyed by the vendor upon their return, and claimant was charged for the full amount of his original order ($112.50).
In his affirmation in opposition to this motion, defendant's attorney has not contested any of these allegations or statements, but states that the motion is premature (since discovery has not been completed) and that material issues of fact exist (without specifying any such material issues of fact).
Regardless, claimant has failed to attach a copy of the pleadings to his motion papers as required by CPLR 3212 (b), and therefore his motion for summary judgment must be denied (see Notaro v Bison Constr. Corp., 32 AD3d 1218 [4th Dept 2006].
Accordingly, it is
ORDERED, that motion No. M-83274 is hereby DENIED, without prejudice.
September 30, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims