Johnson v. Collyer

• Decision Date: 25 February 2021
• Docket Number: 527150
• Citation: 143 N.Y.S.3d 131,191 A.D.3d 1192
• Parties: Johnathan JOHNSON, Appellant, v. Brandi COLLYER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1192
143 N.Y.S.3d 131

Johnathan JOHNSON, Appellant,
v.
Brandi COLLYER et al., Respondents.

527150

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 6, 2021
Decided and Entered: February 25, 2021

143 N.Y.S.3d 132

Johnathan Johnson, Malone, appellant pro se.

Letitia James, Attorney General, Albany (Jonathan Hitsous of counsel), for respondents.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Ellis, J.), entered July 31, 2018 in Franklin County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff is an inmate confined at Upstate Correctional Facility in Franklin County and defendants are inmate grievance counselors who work at that facility. Plaintiff, acting pro se, commenced this action alleging that defendants failed to submit his grievance complaints to the Central Office Review Committee and thereby deprived him of access to the courts under the First Amendment of the U.S. Constitution and his right to due process under the Fourteenth Amendment of the U.S. Constitution, and also that defendants violated 42 USC § 1983. He further alleged that defendants' actions violated the N.Y. Constitution and Correction Law § 139. Following joinder of issue, defendants moved for summary judgment dismissing the complaint for failure to state a cause of action. In opposition, plaintiff cross-moved for summary judgment. Supreme Court treated defendants' motion as a motion to dismiss, granted the motion

143 N.Y.S.3d 133

and dismissed the complaint.¹ Plaintiff appeals.

Initially, plaintiff contends that the motion for summary judgment should have been denied for failure to submit copies of the pleadings with the motion (see CPLR 3212[b] ). Ordinarily, the failure to submit copies of the pleadings would mandate the denial of the motion. "[S]uch a procedural defect may be overlooked if the record is sufficiently complete" ( Welch v. Hauck, 18 A.D.3d 1096, 1098, 795 N.Y.S.2d 789 [2005] [internal quotation marks and citations omitted], lv denied 5 N.Y.3d 708, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005] ). A motion seeking dismissal of a complaint for failure to state a claim focuses on the allegations of the complaint. The complaint was available to Supreme Court, as noted in its order, since it was filed in the Franklin County Clerk's office in June 2015 (see Studio A Showroom, LLC v. Yoon, 99 A.D.3d 632, 632, 952 N.Y.S.2d 879 [2012] ). As such, Supreme Court had a sufficient record to address the motion based upon the complaint and affidavits submitted, and the failure to attach the pleading was properly...