New York State Court of Claims

New York State Court of Claims

McCLAIN v. THE STATE OF NEW YORK, #2006-015-101, Claim No. 107195, Motion No. M-71431


Claim dismissed due to claimant's failure to respond to a 90-day demand to resume prosecution.

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:
Shelton McClain, Pro SeNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3216 dismissing the claim for neglect to prosecute is granted. In a claim filed on January 14, 2003 claimant asserts that following a violation of parole he was illegally detained from March 14, 2002 to August 6, 2002 at the Brooklyn House of Detention for Men (a local correctional facility) awaiting transfer to the Willard Drug Treatment Campus operated by the New York State Department of Correctional Services (DOCS). He further alleges that he was "subjected to a 28 month's (sic) parole violation" due to an unspecified breach of duty by DOCS.

Following receipt of correspondence from the claimant dated July 7, 2004 advising that he was scheduled to be released from confinement on August 23, 2004, the Court issued a letter on August 26, 2004 directing the parties to respond to a series of discovery-related questions contained therein within 15 days of receipt. The Attorney General responded on September 9, 2004 but no response was received from the claimant. The letter advised the parties that failure to respond could result in dismissal pursuant to 22 NYCRR 206.10 (f) (now 22 NYCRR 206.10 [g]).

On October 21, 2005 the Court served upon claimant a notice pursuant to CPLR Rule 3216 demanding that he resume prosecution of this action and directing claimant to serve and file a note of issue within 90 days of receipt of the demand. The demand further specified that a motion to dismiss the claim for unreasonably neglecting to proceed would result from claimant's default. The Court served the demand by certified mail, return receipt requested and by regular mail. The notice served by certified mail, return receipt requested was returned to the Court as "unclaimed." However, the 90 day demand served by regular mail was not returned and its receipt by claimant at the address provided in his correspondence of July 7, 2004 is presumed to have been received.

More than 90 days later the Court by letter dated January 31, 2006 directed claimant to participate in a pre-trial telephone conference scheduled for February 22, 2006. Claimant was further directed to contact the Court in advance of the conference to supply a telephone number at which he could be reached. Claimant neither provided the number nor appeared at the scheduled conference.

In support of the instant motion Assistant Attorney General Paul Cagino affirms that claimant did not resume prosecution of the claim nor has he filed a note of issue. Claimant did not oppose the defendant's dismissal motion.

Upon the receipt of a demand to resume prosecution of the action or claim within 90 days by the filing of a trial term note of issue the claimant must either file the note of issue or move to extend the time period in which to do so (Phil Collins Constr. v Hollis, 247 AD2d 736). Claimant has failed to do either. To avoid dismissal claimant was required to demonstrate both the existence of a potentially meritorious claim and a justifiable excuse for the delay in responding to the Court's 90 day demand (Meyer v Booth Mem. Med. Ctr., 270 AD2d 319, lv denied 95 NY2d755). Claimant made no submission in opposition to the motion and the motion is, therefore, granted.

June 29, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated March 13, 2006;
  1. Affirmation of Paul F. Cagino dated March 13, 2006 with exhibits.