New York State Court of Claims

New York State Court of Claims

MARCANO v. THE STATE OF NEW YORK, #2004-028-526, Claim No. 107050, Motion No. M-67878


Synopsis


Case Information

UID:
2004-028-526
Claimant(s):
DANIEL MARCANO 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:
MARCANO
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):
107050
Motion number(s):
M-67878
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DANIEL MARCANO, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 28, 2004
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 in Support of Assistant Attorney General Joel L. Marmelstein (Marmelstein Affirmation) filed January 9, 2004;
2) Opposition - NONE.


Filed Papers: Claim filed December 9, 2002, Verified Answer filed December 24, 2002.

Claimant initiated this action seeking damages for false arrest. On March 19, 2003 the Court conducted a preliminary conference and issued a scheduling order which, inter alia, required Claimant to serve and file a Note of Issue and Certificate of Readiness on or before July 1, 2003. Defendant now moves for dismissal of the Claim pursuant to CPLR 3216 based upon Claimant's failure to file the Note of Issue and resume prosecution of the Claim, following a demand to do so. Claimant has not opposed the application.

Defendant caused a "90-day Demand" to be served upon Claimant on July 31, 2003 by certified mail return receipt requested, demanding that the Claimant resume prosecution and file and serve a Note of Issue within ninety (90) days, otherwise a motion would be made for dismissal of the claim for want of prosecution. The "green card" reflects service at Claimant's address of record (Marmelstein Affirmation, Exhibit A). There was no response to the notice by Claimant and a Note of Issue has not been served or filed to date. More than one year after the joinder of issue, and five months after service of the "90 day Demand", Defendant made the instant motion.

CPLR Rule 3216(b) provides that for there to be a dismissal for failure to prosecute, issue be joined in the action for at least one (1) year and that the "90-day Demand" be transmitted by registered or certified mail (see Schaeffer v State of New York, 145 Misc 2d 135, 136).

Delivery of the CPLR 3216 demand has been proven by documentary evidence and more than one year elapsed following joinder of issue before Defendant moved for dismissal, thus the "statutory preconditions" (see Baczkowski v D.A. Collins Constr. Co., 89 NY2d 499) have been satisfied.

In light of the foregoing, and given the Claimant's failure to resume prosecution activities despite the CPLR Rule 3216 demand, it is hereby ordered that the motion of the Defendant, is granted and Claim No. 107050 shall be and hereby is dismissed.


April 28, 2004
Albany, New York

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