New York State Court of Claims

New York State Court of Claims

JOBSON v. THE STATE OF NEW YORK, #2004-028-567, Claim No. 108298, Motion No. M-68914


Synopsis


Defendant's motion to dismiss pursuant to CPLR 3216 for failure to prosecute is denied as premature.

Case Information

UID:
2004-028-567
Claimant(s):
STEVEN JOBSON
Claimant short name:
JOBSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108298
Motion number(s):
M-68914
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
STEVEN JOBSON
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. CaginoAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 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 of Assistant Attorney General Paul F. Cagino (Cagino Affirmation) filed August 6, 2004 with annexed Exhibits A-C;


Opposition Papers: NONE.


Filed Papers: Claim, filed September 18, 2003; Answer filed October 2, 2003.



Claimant seeks damages alleging that the Defendant failed to protect him from cruel and unusual punishment while he was confined at the Defendant's Coxsackie Correctional Facility. Defendant has 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). Here, Defendant was premature in serving its Demand to Resume Prosecution (see Siegel, NY Prac § 375, at 598-599; [3d ed]) and has failed to wait the necessary period of time before making the instant application (id.). In fact, Defendant's original return date[1] for the motion was approximately three weeks short of the one year requirement.

In light of the foregoing, Defendant's motion to dismiss the Claim for failure to prosecute is DENIED.


November 1, 2004
Albany, New York

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




[1] The motion was noticed for the second Wednesday of the month and the Court's motion days are the first and third Wednesday.