New York State Court of Claims

New York State Court of Claims

MORGAN v. THE STATE OF NEW YORK, #2006-015-106, Claim No. 109138, Motion No. M-71562


Claim dismissed for failure to prosecute following service of a demand pursuant to CPLR 3216.

Case Information

ANDREW J. MORGAN, an infant by his Mother and Natural Guardian, ROBIN MORGAN, and ROBIN MORGAN, Individually
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:
Robert L. Miller, EsquireNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 18, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order pursuant to CPLR 3216 dismissing the claim for neglect to prosecute is granted. The underlying claim seeks to recover damages for personal injuries sustained by the infant claimant as a result of being struck by a motor vehicle while crossing State Route 276 in Clinton County, New York. The claim alleges that the State was negligent in maintaining and signing State Route 276. The infant's mother also seeks damages for past and future medical expenses and for loss of her son's services.

On December 22, 2005 the defendant by certified mail, return receipt requested served upon claimants a notice pursuant to CPLR Rule 3216 demanding that they resume prosecution of this action and directing claimants 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 claimants' default. The demand was received by claimants' attorney on December 28, 2005 as evidenced by the return receipt.

In support of the instant motion Assistant Attorney General Kevan J. Acton affirms that claimants did not resume prosecution of the claim nor have they filed a note of issue. Claimants 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). Claimants have failed to do either. To avoid dismissal claimants were required to demonstrate both the existence of a potentially meritorious claim and a justifiable excuse for the delay in responding to the defendant's 90-day demand (Meyer v Booth Mem. Med. Ctr., 270 AD2d 319, lv denied 95 NY2d 755). Claimants made no submission in opposition to the motion and the motion is, therefore, granted.

July 18, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers.
  1. Notice of motion dated April 5, 2006;
  2. Affirmation of Kevan J. Acton dated April 5, 2006.