New York State Court of Claims

New York State Court of Claims

RICHARDSON v. THE STATE OF NEW YORK, #2002-028-002, Claim No. 98500, Motion No. M-64370


Synopsis


Defendant's motion pursuant to CPLR 3216 to dismiss for want of prosecution is granted.

Case Information

UID:
2002-028-002
Claimant(s):
ERIC RICHARDSON
Claimant short name:
RICHARDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98500
Motion number(s):
M-64370
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ERIC RICHARDSON, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kevan J. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 8, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on motion by the Defendant to dismiss the Claim

1. Notice of Motion and Supporting Affirmation of AAG Kevan J. Acton, Esq., with annexed Exhibit (Acton Affirmation") and filed November 29, 2001.

2. Affidavit in Opposition: none received


Filed papers: Claim, filed June 22, 1998; Verified Answer, filed July 29, 1998.


This claim is based on allegations of negligence in that claimant was bound, forcibly assaulted and sodomized while incarcerated at the Franklin Correctional Facility.

This matter is presently before the Court on Defendant's motion pursuant to CPLR 3216 to dismiss the Claim for failure of Claimant to resume prosecution of same. Previously, the Court permitted the withdrawal of Claimant's attorney (Decision and Order, M-63027, Sise, J., filed March 13, 2001) and stayed all proceedings for thirty (30) days to give Claimant an opportunity to retain new counsel (CPLR 321[c]) or, at the expiration of thirty days to proceed to trial or face dismissal of the action. Since the Court's decision there has neither been an appearance on behalf of Claimant, nor any effort by Claimant to proceed.

On August 8, 2001, Defendant served, by certified mail return receipt requested, a demand to resume prosecution upon the Claimant (Acton Affirmation, ¶ 2). The certified mail receipt, annexed to the moving papers as an Exhibit, indicates receipt on or about August 8, 2001. It is well settled that, pursuant to CPLR 3216 (b) (3), the prescribed 90-day period for complying with the demand is measured from the "receipt of such demand" rather than the more commonly applicable date of service (see, Public Serv. Mut. Ins. Co. v Zucker, 225 AD2d 308; Juracka v Ferrara, 137 AD2d 921; Ellis v Urs, 121 AD2d 361). As such, Claimant was required to file and serve a Note of Issue, which he has not done, on or before November 7, 2001.[1] The instant motion, filed on November 29, 2001, followed.

Based upon the foregoing, the Court finds that the procedural requirements of CPLR 3216(b) have been met, and Claimant having failed to appear in opposition to the motion and thereby offer a justifiable excuse for the delay (CPLR 3216[d]), the motion shall be and hereby is

GRANTED. Accordingly, Claim No. 98500 is hereby dismissed.


January 8, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] November 6, 2001 was Election Day.