New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2003-032-067, Claim No. 102983, Motion Nos. M-66172, CM-66274


Defendant's motion to dimiss a claim is granted where claimant's efforts in response to the CPLR 3216 demand (90-day demand) do not evidence a genuine intent to proceed with the action or represent diligent prosecution of the claim and where there is no attempt to establish that the cause of action is meritorious.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-66172, CM-66274
Cross-motion number(s):

Claimant's attorney:
Anthony C. Ofodile, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Joel L. Marmelstein, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose at Ogdensburg Correctional Facility in January 2000, when claimant was assaulted by three other inmates in a facility rest room. It is alleged that the defendant was negligent in carrying out its duty to maintain security in the facility. On October 1, 2002, following a series of events that are outlined below, counsel for defendant served a "Demand for Resumption of Prosecution of Action and for Note of Issue" (commonly known as a "90-day demand") on claimant. CPLR 3216 provides that if there is no compliance with such a demand, opposing counsel or the Court itself may move for dismissal of the action for want of prosecution. Within 90 days of being served with the demand, counsel for claimant brought the instant motion seeking 1) an order compelling State employees to appear for deposition, 2) an order striking the 90-day demand, and/or 3) an order striking the State's answer and affirmative defenses.[1] Defendant has since cross-moved for an order of dismissal for failure to prosecute.

The following is a chronology of relevant events. Except as noted, none of these dates or events are disputed by counsel, and a number of them are established in the Court's own records:

August 25, 2000 Pro se claim is filed, and issue is joined.[2]

November 2, 2000 Notice of appearance is filed by claimant's counsel, and the claim is assigned to the IAS calendar of former Judge John L. Bell.

December 2000 [Disputed, see May 24, 2001] Counsel for claimant serves response to defendant's demand for a bill of particulars and discovery demands.

May 24, 2001 Defendant's motion to compel disclosure is granted (unpublished decision, Motion No. M-63392, Bell, J.).[3]

June 11, 2001 An order, signed by Judge Bell, authorizes defendant to depose claimant at Mid-State Correctional Facility.

June 25, 2001 A "So Ordered" stipulation, agreed to by counsel and requiring the note of issue to be filed by February 22, 2002, is signed by Judge Bell.

July 12, 2001 Claimant is deposed by defendant.

October 25, 2001 Counsel for claimant serves demand for bill of particulars, combined discovery demands, and a notice to take deposition of State employees which does not name the witness(es) that are to be deposed.

October 29, 2001 Defense counsel writes to claimant's counsel, indicating that the notice fails to identify the witness(es) claimant seeks to depose and stating that it is claimant's counsel who will have to make the determination as to which witness(es) to depose.

December 4, 2001 Defendant serves responses to claimant's discovery demands and demand for a verified bill of particulars.

January 2002 [Dispute] According to claimant's counsel, there was a conversation between the parties and an agreement to allow discovery to continue beyond the February 22 deadline. According to defense counsel, there was no such conversation. It is undisputed that the Court was never contacted by either party with a request to extend the discovery deadline.

February 22, 2002 The deadline for filing a note of issue passes without any further activity.

July 26, 2002 Claim is transferred to this Court's IAS calendar.

September 19, 2002 At a conference scheduled by the Court because of non-compliance with the note of issue date, claimant agrees to inform the Court on September 20, 2002 of the date by which any remaining discovery could be completed.[4]

September 20, 2002 Claimant's counsel fails to call the Court with the requested information.

September 23, 2002 Internal memorandum to the Court, sets forth events of September 19 and 20.

September 26, 2002 Claimant serves notices to take depositions of six named State employees during the week of October 28, 2002.[5]

September 30, 2002 The Court writes to counsel scheduling an in-person conference to be held October 25, 2002. The letter setting the conference contains the following language:
"This conference is deemed a preliminary conference, and pursuant to Rule 206.10[f] of the Uniform Rules of (sic) the Court of Claims (22 NYCRR §206.10[f]), a party's failure to appear may result in default or dismissal of the claim."
The date for this conference was subsequently adjourned to October 30, 2002.

October 1, 2002 Letter from defendant to claimant refuses to produce the witnesses because the February 22, 2002 discovery deadline has expired.
Defendant serves the 90-day demand on claimant.

Defendant writes to the Court to request a conference relating to discovery matters (22 NYCRR §206.8[b]) and to inform the Court that defendant is objecting to the noticed depositions.

October 30, 2002 Claimant's counsel fails to appear for the scheduled conference.

November 4, 2002 Claimant's counsel calls the Court, stating that he believed the conference had been adjourned to November 6, 2002.[6]

During the period of more than two years since claimant's counsel filed a notice of appearance, he has been less than diligent in prosecuting this action. The only affirmative, documented steps taken that were taken prior to the recent round of activity were responding to defendant's discovery demands (perhaps in a timely fashion in December 2000 or perhaps in response to a motion to compel brought in May 2001) and serving an inadequate notice to take depositions and other discovery demands in October 2001. Well after the discovery deadline expired and on the advice of the law clerk handling a conference call, claimant's counsel also belatedly served adequate notices to take depositions. He thereafter moved to strike defendant's 90-day demand and for permission to depose the State witnesses.

The affirmative actions must be set against claimant's total failure to comply with the scheduling order or to request any extension of time from the Court; the lack of initiative to depose State witnesses in any meaningful manner; the failure to provide the Court with information that was promised on September 19, 2002; the failure to attend a conference that was set by the Court in a written notice which warned that failure to attend could result in dismissal of the action; and the failure to file a a note of issue in response to defendant's service of a 90-day demand.

Applicable Law

Courts are prohibited from dismissing an action for failure to prosecute unless the statutory requirements of CPLR 3216 are met (Baczkowski v D.A. Collins Construction Co., 89 NY2d 499, 503 [1997]). In this instance, those prerequisites have been met. Issue was joined more than a year ago; defendant's written demand was served by registered or certified mail; and that demand announced that claimant's failure to file a note of issue within ninety days could serve as a basis for a motion for dismissal (subd. [b][1]-[3]). If, following proper service of such a demand, a note of issue is served within the designated time period, then there has been sufficient compliance with the demand and no motion to dismiss can be made (or if made, it must be denied) (subd [c]). In the instant case, claimant failed to file a note of issue within 90 days of being served with the demand.

When a party fails to file a note of issue in response to a 90-day demand, the court may either dismiss the action on its own initiative or grant a motion to dismiss unless the party served "shows justifiable excuse for the delay and a good and meritorious cause of action" (subd. [e]). In this instance, counsel for claimant has made no effort to convince the Court of the meritoriousness of the underlying action, and his only excuse for failing to file a note of issue in response to the 90-day demand is that the depositions he had noticed in September 2002 could not be completed, casting blame for this fact on defendant's refusal to produce the witnesses for examination.

The threshold question is whether the actions of claimant's counsel in serving a belated notice for depositions and in moving to strike the 90-day demand prevent the Court from even considering the motion to dismiss on its merits. As the Court of Appeals observed in Baczkowski (supra), CPLR 3216 is "extremely forgiving of litigation delay" (89 NY2d at 503), and courts have interpreted the statute in a fashion that is even more forgiving than the express language requires.[7] The statute expressly provides only that the action may not be dismissed if a note of issue is filed within the prescribed time period (CPLR 3216[c]). Decisional law suggests, however, that there should be no motion to dismiss (or that no such motion should be granted) if there has been any response to the 90-day demand indicating an "intention to proceed with the action" (id at 502). Typically, the motions to dismiss are considered only where the party served fails to "file a note of issue, move to vacate, or take any other action within the 90-day period" (Schneider v Meltzer, 266 AD2d 801, 802 [3d Dept 1999]; see also Baczkowski, supra; Blackmon v Meo, 284 AD2d 711 [3d Dept 2001]; Holzer v State of New York, Ct Cl, Jan. 23, 2001, Collins, J., Claim No 100085, Motion No. M-62739). As a noted commentator has observed, a party's failure to file a note of issue is typically excused "as long as the plaintiff can satisfy the court that she pressed forward as diligently as possible after being served with the 90-day demand" (Siegel, NY Prac, §375, p 599 [3d ed]).

Research has disclosed a few situations, however, where the party served with the 90-day demand took some action following its receipt but those steps were held to be insufficient to keep the motion to dismiss from being considered. In Olejak v Town of Schodack (295 AD2d 679 [3d Dept 2002]), during the relevant 90-day period, the plaintiff sent two letters to defendants: one soliciting a settlement offer and the other stating plaintiff's intention to file a note of issue and asking if additional medical documents were required by the defendant. Although it could be argued that these actions evidenced an "intention to proceed," the Third Department held that defendant's motion to dismiss was properly considered and granted because the plaintiff did not press forward "as diligently as possible" after being served (295 AD2d at 680.) Two of the cases cited in Olejak (supra) provide additional examples. In Brady v Mastrianni, Abbuhl & Murphy (187 AD2d 858 [3d Dept 1992]), the plaintiffs had requested and received an extension of the 90-day period in order to complete depositions but then failed to reschedule them. This did not prevent the court from entertaining and ultimately granting a motion to dismiss based on CPLR 3216. In Berna v Monroe Community College (91 AD2d 1199 [4th Dept 1983]), the plaintiff communicated with defendant regarding possible settlement during the 90-day period. The motion was considered, however, and the court concluded that only active settlement negotiations could justify continued delay and then only for a short period of time. (See also, Abelard v Interfaith Medical Center 202 AD2d 615 [2d Dept 1994] [requesting and scheduling a preliminary conference within the 90-day period held to be insufficient]).

In the instant case, as set forth above, claimant's response to the 90-day demand was to move to vacate the demand and compel the deposition of State witnesses. Deposition of those witnesses had been noticed in late September 2002, only a few days prior to service of the 90-day demand and, in the Court's view, clearly in anticipation that such a demand was going be made. Do these actions establish that there was a genuine "intention to proceed" with the litigation and that claimant was pressing forward "as diligently as possible" in response to the CPLR 3216 demand?

In the Court's view, they do not. At least on a practical level, these actions are little more than a last minute attempt to avoid dismissal of an action which had, for all intents and purposes, been abandoned almost a year earlier. Prior to this last minute flurry of activity, which began in September 2002 at the Court's instigation, the claimant's last effort toward prosecution had been the October 2001 service of a demand for a bill of particulars, a combined discovery demand, and a defective notice to take the deposition of unnamed State witnesses. Counsel for defendant, who had deposed claimant several months earlier, promptly wrote to say that the desired witnesses had to be identified by claimant and, within a month, responded to the other demands. At that point, several months before the stipulated close of discovery, defendant had completed all necessary preparations and was ready for trial.

Claimant, in contrast, became totally inactive through and beyond the date by which the Court had directed the note of issue be filed. In some situations, the responses that claimant made to the State's 90-day demand (serving notices of witnesses that needed to be deposed, moving to compel those depositions, and moving to vacate the demand) would be sufficient to evidence a true intention to proceed. On the other hand, simultaneously ignoring a promise to the Court to provide further information and then failing to appear for a scheduled conference can hardly be considered the actions of a litigant who is proceeding "as diligently as possible."

Claimant has also failed to comply with another step that is necessary to avoid dismissal of a poorly prosecuted action. Pursuant to CPLR 3216(e), plaintiffs or claimants who seek to preserve their action must show both a justifiable excuse for the delay and a meritorious cause of action (CPLR 3216[e]; Baczkowski v D.A. Collins Construction Co., 89 NY2d 499, 503, supra). Claimant has not even addressed the issue of merit[8]. Instead, claimant's counsel asserts that he failed to file the note of issue because several depositions had to be concluded before the matter would be ready for trial and a certificate of readiness could be signed (22 NYCRR §206.12) and that, by refusing to permit those depositions, the delay was caused by defendant's own actions. When a delay in filing a note of issue "is caused or affirmatively contributed to" by the defendant who served the 90-day demand, then the motion to dismiss must be denied, without even requiring the plaintiff or claimant to establish the merit of the underlying lawsuit (Schoenhals v Kissing Bridge Corporation, 96 AD2d 711 [4th Dept 1983]). "In short, since the defendant has now required the plaintiff to run scared, the defendant should be required to cooperate in any step the plaintiff must take within the 90-day period in order to be able to file the note of issue" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3216:27).

This does not mean, however, that every attempt to lay blame at the feet of the defendant will succeed. In Hogan v City of Kingston (243 AD2d 981 [3d Dept 1997]), the plaintiff asserted that he could not complete discovery because defendant had been late in providing the name of a witness, but this reason was rejected because, although the witness' name had been provided on the same day that the 90-day demand was served, plaintiff made no attempt to schedule a deposition. Nor was it sufficient in Rowley v Carl Zeiss, Inc. (270 AD2d 835 [4th Dept 2000]), for the plaintiff to place blame on defendant's purportedly inadequate discovery responses, where those responses had been provided 18 months prior to service of the 90-day demand and plaintiff had made no effort to compel a more adequate response. Finally, in Tierney v OB-GYN Associates of Ithaca (186 AD2d 926, 927 [3d Dept 1992]), the court rejected a plaintiff's effort to shift blame for the delay onto the defendants by claiming that they refused to be deposed. "[T]here is nothing in the record to support this assertion and plaintiffs never complained of defendants' actions until the present motion."

In the instant case, claimant was in possession of all of the information it needed to identify the State witnesses at least by early December 2001, and counsel for defendant had indicated even earlier a willingness to produce witnesses as soon as they were identified, going so far as to suggest arrangements as to a convenient location for the depositions. The date designated by Judge Bell, and agreed to by the parties, as the date by which all discovery was to be complete, February 22, 2002, passed by without any further action or request for extension on the part of claimant. It was not until seven months later, immediately following a conference with the Court that signaled that the case would not be allowed to languish, that claimant was suddenly able to name the witnesses that needed to be deposed. At that juncture, defense counsel was well within his rights to decline to produce the witnesses unless directed to do so by the Court in response to claimant's motion to compel. The Court, in turn, is well within its discretion to deny the motion to compel on the ground that the motion is a belated, ineffective effort to avoid dismissal of a claim that had long since been abandoned.

Claimant's motion is denied in its entirety. Defendant's cross-motion is granted, and Claim No. 102983 is dismissed.

June 25, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order compelling certain depositions, striking defendant's 90-day demand, and/or striking the answer and on defendant's cross-motion for an order of dismissal.

Motion No. M-66172
1. Notice of Motion and Supporting Affirmation of Anthony Ofodile, Esq., with annexed Exhibits

2. Affirmation in Opposition of Joel L. Marmelstein, Esq., AAG, with annexed Exhibits

3. Reply Affirmation of Anthony Ofodile, Esq., with annexed Exhibits

Cross-Motion No. CM-66274

4. Cross-Motion and Supporting Affirmation of Joel L. Marmelstein, Esq., AAG, with annexed Exhibits

5. Affirmation in Opposition to the Cross-Motion of Anthony Ofodile, Esq., with annexed Exhibit
Filed papers: Claim; Answer

[1] The State's answer contained only one affirmative defense: claimant's culpable conduct.
[2] There was significant confusion surrounding the filing of this claim and another virtually identical claim (see, unpublished opinion, Motion No M-62588, March 14, 2001, Fitzpatrick, J.). As a result of the motion that resulted in dismissal of the other claim, an answer that had been filed and served by the State in April 2000 was deemed to be the answer to the August 25, 2000 claim. Consequently, issue was joined as soon as the claim was filed.
[3] In response to the motion but after the return date, counsel for claimant submitted what were said to be copies of discovery responses that had been served on defendant in December 2000. Because this submission was untimely, it was not considered, and the conditional order of preclusion was granted. Counsel for defendant nevertheless acknowledged receipt of the discovery materials in response to the motion, although maintaining that they had not been received earlier. Despite the requirement that all papers served on opposing counsel be filed with this Court, the only copy of claimant's discovery responses in the Court's files were served in connection with the May 2001 motion, not in December 2000.
[4] Because this Court's law clerk was unexpectedly called out of town, this conference was handled by a law clerk assigned to another judge. The law clerk suggested, prudently, that claimant serve the necessary notices for depositions but did not direct or oblige defendant to agree to produce the witnesses, leaving that determination to the Court.
[5] Defense counsel was not consulted as to the feasibility of the date designated for the depositions and, in fact, was already scheduled to appear on trial in another matter on the date listed.
[6] The Court has no knowledge or record of such additional adjournment and has been presented with no reason that claimant's counsel would have reached such a conclusion.
[7] A historical explanation for both the current statute and the interpretation it has received is contained in Siegel's NY Prac §375, pp 595-598) [3d ed]).
[8] Primarily because there has been so little discovery in this matter, the Court's ability to assess the potential merit of the claim is limited. In the claim, which was filed pro se, it is alleged that claimant went to the rest room area of the recreation yard at Ogdensburg Correctional Facility. Only one inmate at a time is to be allowed in the rest room, but he was nevertheless beaten by three other inmates at that location. Allegedly no officer responded to the scene in response to the violent altercation.