New York State Court of Claims


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New York State Court of Claims

KLEINPLATZ v. THE STATE OF NEW YORK, #2003-028-566, Claim No. 104327, Motion No. M-66883


Synopsis


Case Information

UID:
2003-028-566
Claimant(s):
JOSEPH S. KLEINPLATZ, M.D. The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
KLEINPLATZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104327
Motion number(s):
M-66883
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
NATHAN L. DEMBIN & ASSOCIATES, P.C.BY: Edward Yun, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion to dismiss the Claim:

1) Notice of Motion and Affirmation of Assistant Attorney General Kathleen M. Resnick (Resnick Affirmation) filed May 30, 2003 with annexed Exhibits A-C;


Opposition Papers: NONE.


Filed Papers: Claim, filed May 24, 2001; Answer filed July 5, 2001

Claimant seeks damages alleging that the State Office of Professional Medical Conduct obtained his credit report in violation of statute. Defendant has moved to dismiss the Claim pursuant to CPLR 3216 for failure to prosecute the action. Claimant has not opposed the application.

On December 10, 2001, following a preliminary conference held pursuant to 22 NYCRR § 206.10, the Court issued a scheduling Order, which required, inter alia, that Claimant file a Note of Issue and Certificate of Readiness on or before June 28, 2002 (see Resnick Affirmation, Exhibit A). Claimant did not comply with this directive of the Court. In a February 14, 2003 letter, the Court advised that a Note of Issue was not filed as ordered, inquired as to the status of the Claim and advised that the failure to file a Note of Issue would result in an Order pursuant to CPLR 3216. On February 28, 2003 the Court, and the Attorney General, received a facsimile from Claimant himself indicating that "he would be trying to substitute in counsel over the next thirty days"(see Resnick Affirmation, Exhibit C).[1] On or about March 5, 2003 the Court advised Claimant's counsel of record of Claimant's facsimile and requested that the representation issue be clarified. Since then, the Court has not been contacted by either Claimant or counsel nor has a substitution of counsel or a Note of Issue been filed. Against this background, Defendant has now moved to dismiss the Claim pursuant to CPLR 3216 for failure to prosecute the action. Claimant has not opposed the application.

CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals and 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 (Baczkowski v D.A. Collins Constr. Co., 89 NY2d 499, 503). Applying this three part test to the instant facts, the first and third prongs are satisfied and the Court so finds. As to the second prong, the notice was served upon Claimant by the Court by first class mail, which, at first blush, does not satisfy CPLR 3216's certified or registered mail requirement. However, the failure to serve the demand by certified or registered mail, where, as here, there is actual notice, is a "mere irregularity" and does not warrant denial of the motion (Balancio v American Optical Corp., 66 NY2d 750, 751; see also footnote 1, supra). Accordingly, the Court finds that the conditions warranting dismissal for failure to prosecute are satisfied.

In light of the foregoing, Defendant's motion to dismiss the Claim for failure to prosecute is GRANTED and Claim No. 104327, shall be and hereby is dismissed.



September 4, 2003
Albany, New York

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





[1] The Court also received a telephone call from Claimant.