New York State Court of Claims

New York State Court of Claims

HOLMAN v. STATE OF NEW YORK, #2004-018-312, Claim No. 101699, Motion No. M-67937


Defendant's motion to dismiss claim for failure to prosecute is DENIED.

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):
Cross-motion number(s):

Claimant's attorney:
PROSKIN LAW FIRM, P.C.By: Arnold W. Proskin, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 6, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The Defendant has brought a motion to dismiss the claim pursuant to CPLR 3216. No

response has been received from Claimant's counsel.

This case has an unfortunate history, vividly recalled. Claimant was an inmate in Riverview Correctional Facility at the time his claim accrued, and he is currently incarcerated at Wende Correctional Facility. Claimant's case was originally called for trial on July 11, 2002, during this Court's Prison Term. At that time, Claimant advised that he was represented by the Proskin Law Firm and did not wish to proceed without his counsel. The Proskin Law Firm acknowledged their representation of Claimant, despite no notice of appearance having been filed and no signed retainer agreement could be located (see Sanders Affirmation attached to the Decision and Order filed October 10, 2003 [Defendant's Exhibit B]). The Court adjourned the trial and directed the Proskin Law Firm to file a notice of appearance and a note of issue and certificate of readiness within 20 days from the date a copy of the Decision and Order was filed with the Clerk of the Court. That Decision and Order was filed February 11, 2003, and a copy sent to the Proskin Law Firm from the Clerk's office. No notice of appearance or note of issue has been filed to date. The Court, after correspondence with the law firm and a hearing, at which time no one from the law firm appeared, sanctioned the law firm for its frivolous conduct and failure to appear (Decision and Order dated September 23, 2003, filed October 10, 2003).

In the interim, Defendant's counsel served a ninety day demand pursuant to CPLR 3216 upon the Proskin Law Firm and Claimant by certified mail, return receipt requested on July 31, 2003. Again, no note of issue has been filed to date. Defendant, understandably, now seeks dismissal of the claim for failure to prosecute.

Although no note of issue and certificate of readiness have been filed in response to Defendant's 90-day demand pursuant to CPLR 3216, the Court declines to grant Defendant's motion. First, Claimant is an inmate, and pursuant to the Rules for the Court of Claims [22 NYCRR § 206.12(a)] a pro se inmate is not required to file a note of issue and certificate of readiness. Prisoner pro se claims are placed upon the Judge's prisoner pro se calendar and are called for trial during a scheduled prison term. Although the Court found, in its Decision and Order filed February 11, 2003, that Claimant was represented by the Proskin Law Firm, that firm has failed Claimant in every respect as to what could be objectively considered competent representation. As a result, this Court will not punish Claimant for the sins of his counsel; for all practical purposes Claimant has been pro se. Claimant has written the Court, repeatedly,[1] inquiring as to the status of his claim and requesting that it be heard. Clearly, Claimant has not abandoned his claim, it is his counsel who has abandoned him.

Although, the Court can sincerely appreciate the frustration of Defendant's counsel that this claim has not moved any closer to resolution since July 11, 2002, that frustration is shared by Claimant and is solely the result of the Proskin Law Firm. Under these circumstances, I must DENY Defendant's motion.

July 6, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in support with exhibits attached thereto....................................................2

Letter from Kenneth Holman dated January 28, 2004............................................3

No response was received from Claimant's attorneys.

[1]The Claimant has complained in various correspondence that the Proskin Law Firm would not communicate with him. The Court has forwarded a copy of all correspondence received from Claimant to the Proskin Law Firm.