New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK, #2001-015-206, Claim No. 96030, Motion No. M-64125


Synopsis


Claimant's failure to file a note of issue or to move for an extension of time to do so following service of a 90 day demand pursuant to CPLR 3216 resulted in dismissal of the claim.

Case Information

UID:
2001-015-206
Claimant(s):
MIGUEL A. COLON
Claimant short name:
COLON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96030
Motion number(s):
M-64125
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Miguel A. Colon, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 3, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion for an order pursuant to Civil Practice Law and Rules (CPLR) 3216 dismissing the instant claim for want of prosecution is hereby granted. The claim filed on April 18, 1997 seeks $956,000.00 in damages for alleged negligence on the part of DOCS personnel in failing to safeguard claimant's confidential and privileged medical records in violation of applicable provisions of the Public Health and Civil Rights laws. Issue was joined by the filing and service of an answer on May 29, 1997. The claim was transferred to this Court by order of Presiding Judge Susan Phillips Read dated December 27, 1999 and a telephone conference was held on April 12, 2000 during which the pro se claimant was directed to file a note of issue on or before April 12, 2001. The Court's direction was confirmed in an order of the Court dated April 26, 2000 which provided that the Court would consider the imposition of an appropriate sanction if the note of issue was not filed as directed. Claimant failed to file a note of issue by the date designated.

The Court thereafter scheduled a teleconference for June 5, 2001 to discuss the status of the case and advised claimant in writing of the date and time of the conference. Claimant, however, did not appear at the scheduled time nor did he contact the Court to advise of his unavailability on the scheduled date. Defense counsel subsequently served a written demand to resume prosecution pursuant to CPLR 3216 by certified mail/return receipt requested addressed to claimant at his last known address. A photocopy of the domestic return receipt addressed to claimant was attached to the defendant's motion papers and indicates it was signed for by Jennifer Shingleton on June 9, 2001. More than 90 days have passed since the demand was served and no note of issue has been filed. By motion on notice to the claimant dated September 28, 2001 defendant now seeks dismissal of the claim for claimant's unreasonable neglect to proceed with the claim.

"In order to avoid a default a [claimant] served with such a demand must either file a timely note of issue or move for an extension of time within which to comply" (Walton v Clifton Springs Hosp. & Clinic, 255 AD2d 964). The instant claimant has done neither and, in fact, has failed to oppose the instant motion. Under these circumstances, defendant's motion is granted and the claim is hereby dismissed (see, Blackmon v Meo, 284 AD2d 711).


December 3, 2001
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 September 28, 2001;
  2. Affirmation of Kevan J. Acton dated September 28, 2001, with exhibit.