On April 20, 2005, the following papers were read on motion by Defendant for
dismissal of the claims:
Notice of Motion, Affirmation and Exhibits Annexed
Opposing Papers: None
Filed Papers: Claims; Amended Answer; Decision and Order (M-65643 - November 27,
Upon the foregoing papers, this motion is granted to the extent noted and the
claims are dismissed.
In this motion the Defendant seeks to dismiss the claims herein on the ground
that they were served by regular mail, in derogation of the specific service
requirements of Court of Claims Act §11(a)(i), which reads in relevant part
that the claim "shall be served upon the attorney general within the times
hereinbefore provided for filing with the clerk of the court either personally
or by certified mail, return receipt requested." The two claims here are
essentially identical, with Claim No. 105733 (filed on March 11, 2002) alleging
negligence relating to working conditions at the rear dock loading area of the
mess hall at Wende Correctional Facility (Wende) on or about December 18, 2001,
and Claim No. 105991 (filed on April 29, 2002) alleging negligence for improper
working conditions and lack of help unloading a truck for the same
In a motion decision and order in Motion No. M-65643, dated November 27, 2002,
Defendant was permitted to file an amended answer to the claims noted above.
Claimant defaulted on that motion and did not oppose the relief sought, nor was
any appeal taken therefrom.
In the instant motion, Claimant has also defaulted and has not opposed the
relief sought here, to wit, dismissal of the claims. Part of the reason for
such default would appear to be Claimant's failure to have notified the Clerk of
the Court of a change of his address, as required by 22 NYCRR 206.6(f), which
requires that changes in the post office address or telephone number of any pro
se claimant shall be communicated in writing to the Clerk within ten days
thereof. The Court's files show that correspondence from the Chief Clerk
relative to the instant motion was sent to the Claimant at Wende, but was
returned on March 28, 2005 with the notation "Return to Sender." It was rather
simple for me to effectuate an independent review of the website of the
Department of Correctional Services, using on-line information for "inmate
lookup," and obtain the information that Claimant was given a conditional
release to parole from Wende Correctional Facility on May 5, 2004.
Since the Defendant served the instant motion papers upon Claimant at Wende, I
presume that it, too, had its correspondence returned with the same notation,
"Return to Sender." If that is the case, and nothing before me suggests
otherwise, the Defendant, despite making a good faith effort, was unable to
effectuate service of the motion upon the Claimant. Rather surprisingly, I
received no such notification or communication from the Defendant, an oversight
I would expect will not be replicated in the future.
Claimant has failed to provide updated information of his change of address to
the Clerk, in derogation of 22 NYCRR 206.6(f). While dismissal cannot be
predicated merely on the failure to provide a current address (see Knight v
the State of New York, Ct Cl, UID #2002-015-279 [Claim No. 104458, Motion
No. M-65115], Aug. 5, 2002, Collins, J., holding that Section 206.6[f] does not
impose a penalty and does not require a claimant to notify the defendant's
attorney of his new address, and thus the rule cannot serve as a basis for
dismissal of the claim), "claims may be dismissed for failure to appear or
prosecute... in the discretion of the court" (Court of Claims Act §19).
Here it appears that Claimant has abandoned his claims by defaulting on the
earlier motion and by failing over a period of more than one year from his
release to parole to provide the Clerk with his current address. Moreover, my
review of the Court's files of these claims shows that the last communication
from Claimant was a letter addressed to the Clerk dated September 11, 2002, more
than 2½ years ago.
Accordingly, based upon the Claimant's failure to appear and his overt
abandonment of his claims, the claims are dismissed and the motion is granted to
that extent. It therefore is not necessary for me to examine the
jurisdictional arguments for dismissal raised by the Defendant.