New York State Court of Claims

New York State Court of Claims

OLIVER v. THE STATE OF NEW YORK, #2004-032-056, Claim No. 107799, Motion No. M-68459


Synopsis


Claim is dismissed pursuant to CPLR 3216 (want of prosecution) for failure to respond to a 90-day demand that was properly served by defense counsel.


Case Information

UID:
2004-032-056
Claimant(s):
CLYDE OLIVER
Claimant short name:
OLIVER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107799
Motion number(s):
M-68459
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Clyde Oliver, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 4, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The claim in this action was filed with the Court on May 29, 2003. It alleges that on August 7, 2002, claimant suffered physical injuries while a passenger in a van operated by an employee of the Department of Correctional Services. Defendant's answer was filed on June 26, 2003.


On February 2, 2004, counsel for defendant served on claimant a Demand to File a Note of Issue. As required by CPLR 3216 (b)(2), (3), it has been more than one year since issue was joined, and the demand served by defendant refers to the statute and states that failure to serve a note of issue within 90 days "will serve as the basis [for] a motion for dismissal for unreasonable neglect to proceed"(Cagino Affirmation, Exhibit A). As further required by the statute, the demand was served by certified mail, and claimant acknowledged receipt on February 4, 2004 (id., Exhibit B). Claimant has failed to file a note of issue or to apply to the Court for an extension of time in which to do so or for other relief (CPLR 3216[e]. In fact, claimant has failed to submit any response in opposition to the motion.

Defendant's motion is granted, and Claim No. 107799 is dismissed for want of prosecution.


August 4, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG

2. Affidavit in Opposition: none received

Filed papers: Claim, Answer