New York State Court of Claims

New York State Court of Claims

STURDIVANT v. THE STATE OF NEW YORK, #2000-015-096, Claim No. 101191, Motion No. M-62098


Synopsis


Inmate claim dismissed for failure to comply with prior order of the Court compelling claimant to serve bill of particulars within 45 days.

Case Information

UID:
2000-015-096
Claimant(s):
RANDOLPH STURDIVANT
Claimant short name:
STURDIVANT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101191
Motion number(s):
M-62098
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Randolph Sturdivant, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion for an order dismissing the instant claim pursuant to CPLR § 3126 (3) for claimant's failure to comply with a prior order of this Court dated May 9, 2000 is granted. The request for relief pursuant to CPLR § § 3124, 3216 and 3134 is denied. Relief pursuant to CPLR 3124 is not available as that section concerns failure to respond to discovery demands not failure to serve a bill of particulars. CPLR 3216 involves a dismissal for want of prosecution, not a failure to serve a bill of particulars. CPLR 3134 was repealed effective January 1, 1994.

This is a claim by an inmate appearing pro se to recover the sum of $154.97. By decision and order dated May 9, 2000 this Court granted the defendant's motion to preclude the claimant from offering proof at trial with respect to matters of which particulars were demanded in a demand dated November 2, 1999 unless claimant served a bill of particulars within 45 days of service upon him of a copy of the decision and order with notice of entry.

On the instant motion, which is also unopposed, the defendant has submitted an affidavit of service of such decision and order with notice of entry dated June 7, 2000 in which the affiant states that she deposited a true copy of the decision and order with notice of entry in an official depository of the United States Post Office at Utica, New York addressed to Randolph Sturdivant, 96-A-4895, Marcy Correctional Facility, P.O. Box 5000, Marcy, New York 13403-5000. Such address appears to be correct. The supporting affidavit of defendant's attorney alleges that the properly served order was received at the Marcy Correctional Facility on June 8, 2000. It is further alleged that the claimant refused to pick up the mail despite receiving several notices of its arrival at the facility. The defendant has also submitted an affidavit of service of a copy of the instant notice of motion which indicates service upon the claimant on July 25, 2000.

CPLR 2220 (b) merely provides that "Service of an order shall be made by serving a copy of the order." The statute does not mandate any particular method of service for an order and it may, therefore, be served in any manner authorized by CPLR 2103. Subdivision (c) of such section provides that if a party has not appeared by an attorney service shall be upon the party by a method specified in paragraph one, two, four, five or six of subdivision (b). Paragraph two thereof provides for service by mail.

In Engel v Lichterman, 62 NY2d 943, the Court of Appeals affirmed the Appellate Division's reversal of the trial court's refusal to grant summary judgment dismissing the action for plaintiff's failure to comply with a conditional order of preclusion. In that case plaintiff's attorney argued on the summary judgment motion that the Court's conditional order of preclusion was never received by his office. Both the Appellate Division and the Court of Appeals rejected plaintiff's argument holding that a properly executed affidavit of service raises a presumption that a proper mailing occurred and that pursuant to CPLR 2103 (b)(2) service is complete upon mailing.

Applying that general principal here, the Court concludes that claimant was properly served with this Court's order of May 9, 2000 and that his alleged refusal to receive the order does not preclude the relief requested in the instant motion.

In the Court's view, the failure of the claimant to comply with the prior order of this Court stemming from his refusal to accept service of that order together with his failure to oppose this motion establishes willful and contumacious conduct sufficient to warrant the dismissal of the claim (Kihl v Pfeffer, 94 NY2d 118).



October 31, 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 July 25, 2000;
  2. Affirmation of Joel L. Marmelstein dated July 25, 2000