New York State Court of Claims

New York State Court of Claims

O'Daly v. THE STATE OF NEW YORK, #2000-015-034, Claim No. 98071, Motion No. M-61400


Synopsis


Upon the receipt of a demand to resume prosecution of the action or claim within 90 days by the filing of a trial term note of issue the claimants must either file the note of issue or move to extend their time period in which to do so

Case Information

UID:
2000-015-034
Claimant(s):
BRIAN J. O'DALY and DOROTHY O'DALY
Claimant short name:
O'Daly
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98071
Motion number(s):
M-61400
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Brian J. O'Daly and Dorothy O'Daly, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 7, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion of the defendant for an order pursuant to CPLR § 3216 dismissing the claim for neglect to prosecute is granted. In a decision and order filed on February 10, 1998, this Court granted claimants permission to serve and file a late claim setting forth a cause of action to recover for personal injuries and derivative loss allegedly caused by the negligence of employees of the State of New York when Mr. O'Daly fell from a chairlift and was struck on the head by a descending chair at approximately 1:30 p.m. on February 20, 1997 at the Belleayre Mountain Ski Center. It is alleged that the overhead safety bar on Mr. O'Daly's chair was inoperable and that the operator caused the chair containing Mr. O'Daly to ascend the mountain before the time that Mr. O'Daly was safely secured. Finally, it is alleged that the chairlift operator negligently failed to stop the chairlift before the descending chair struck and injured Mr. O'Daly. The claim was filed on March 30, 1998 and set forth the address of the claimants as 359 South End Avenue, Apartment 18-J, New York, New York 10280. Claimants were represented by attorney Leon Segan at the preliminary conference held on June 3, 1998 and an order was filed on June 11, 1998 directing that claimants file a note of issue on or before June 4, 1999. A note of issue was not timely filed and claimants' counsel moved for permission to withdraw as the attorney of record for the claimants. The motion to withdraw was granted in a decision and order dated August 24, 1999. No note of issue was forthcoming and claimants did not retain new attorneys to represent them.

On October 1, 1999, the Court caused to be served upon the claimants at the address set forth in the claim a CPLR 3216 demand that they serve and file a trial term note of issue within 90 days of their receipt of the demand. On January 7, 2000, the Court sent a letter to claimants at the address set forth in the claim advising them that a pretrial conference was scheduled for January 21, 2000 at 10:00 a.m. Claimants did not take part in the telephone conference. Subsequently, Mr. O'Daly telephoned chambers and advised that his new address was 252 74th Street, Apartment 1-C, Brooklyn, New York 11209. On February 2, 2000, a letter was sent to claimants at that address directing them to contact the Court immediately and, on February 14, 2000, Mr. O'Daly telephoned chambers and left a message on a recording machine which contained his telephone number. On February 15, 2000, a member of chamber's staff telephoned Mr. O'Daly and left a message on the answering machine requesting Mr. O'Daly again to make contact with the Court. That message was never responded to. This motion was served upon claimants on March 22, 2000 at both the address set forth in the claim and the Brooklyn address subsequently provided by the claimants. The envelope sent to the claimants at the address set forth in the claim was returned to the Attorney General marked that the claimants had moved and left no forwarding address. However, the motion papers sent to the Brooklyn address were not returned, and were apparently received by the claimants.

The history and operation of CPLR 3216 is described by the Court of Appeals in the case of Baczkowski v Collins Constr. Co., 89 NY2d 499, 502, 503, as follows:
CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals. The provision has a checkered history, which this Court has recounted on prior occasions (see, e.g. Chase v Scavuzzo, 87 NY2d 228, 231-233; Cohn v Borchard Affiliations, 25 NY2d 237, 244-246; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:1-C3216:4, at 628-635). As a result of a 1967 amendment to CPLR 3216, courts are prohibited from dismissing an action for neglect to prosecute unless the statutory preconditions to dismissal are met (see, CPLR 3216[b]; Cohn v Borchard Affiliations, supra, 25 NY2d at 246).

CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period (CPLR 3216[b]). So long as plaintiff serves and files a note of issue within the 90-day period, all past delay is absolved and the court is then without authority to dismiss the action (CPLR 3216[c]). However, if plaintiff fails to file a note of issue within the 90-day period, 'the court may take such initiative or grant such motion [to dismiss] unless the [defaulting] party shows justifiable excuse for the delay and a good and meritorious cause of action' (CPLR 3216 [e]). Thus, even when all of the statutory preconditions are met, including plaintiff's failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse and an affidavit of merit. If plaintiff makes a sufficient showing, the court is prohibited from dismissing the action.
Upon the receipt of a demand to resume prosecution of the action or claim within 90 days by the filing of a trial term note of issue the claimants must either file the note of issue or move to extend their time period in which to do so (Phil Collins Constr. v Hollis, 247 AD2d 736). Claimants have failed to do either. To avoid dismissal they were required to demonstrate both the existence of a potentially meritorious claim and a justifiable excuse for the delay in responding to the 90 day demand (Meyer v Booth Memorial Medical Center, ____ AD2d ____, 704 NYS2d 861). Claimants made no submission in opposition to the motion, a result which under older case law would compel that the motion be granted (Wertheimer v J.B. Oil Serv. Corp., 36 AD2d 584). Here, an argument can be anticipated from the claimants to the effect that they never received the CPLR 3216 demand as they did not reside at the address to which it was sent and thus the 90 day time period in which to serve and file a note of issue never commenced to run. While such an argument may appear meritorious in that the 90 day period in which to comply with a CPLR 3216 demand "is measured from the 'receipt of such demand' rather than the more commonly applicable date of service" (Indemnity Ins. Co. v Lamendola, 261 AD2d 580) it is unavailable to the claimants herein in light of the Appellate Division holding in Diaz v Caypinar, 209 AD2d 375, 376. In particular, the Appellate Division in the Diaz case held that, "in response to the motion, the plaintiffs failed to deny receipt of the 90 day demand from the court and cannot now argue that they never received it". In this case, the Attorney General served a copy of the motion papers upon the claimants at their current address in Brooklyn and the claimants have failed to submit opposition papers denying receipt of the 90 day demand from the Court. Applying Diaz, the claimants are now precluded from arguing that they never received the demand and the dismissal motion must be granted.


June 7, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated March 22, 2000;
  2. Affirmation of Frederick H. McGown, III dated March 22, 2000, with exhibits;
  3. Returned envelope bearing the motion papers sent to claimants at the address set forth in the claim;
  4. Letter of Assistant Attorney General Frederick H. McGown, III dated April 6, 2000;
  5. Claim filed on March 30, 1998;
  6. Various orders and letters referred to in the decision and order.