New York State Court of Claims

New York State Court of Claims

HOLMAN v. STATE OF NEW YORK, #2006-018-517, Claim No. 101699, Motion No. M-71090


Defendant’s motion to dismiss pursuant to CPLR 3216 is denied.

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:
Kenneth HolmanPro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss for failure to prosecute pursuant to CPLR 3216.

Defendant affirms that on July 12, 2005, a Demand for Resumption of Prosecution of Action and for Note of Issue was sent to Claimant by certified mail, return receipt requested at the last address Claimant furnished to the Clerk of the Court of Claims. The Demand was returned to Defendant with the postal notation, “return to sender - unclaimed - unable to forward.”

Defendant filed this motion on December 14, 2005 which Claimant, in his response dated January 25, 2006, acknowledges that he received. Claimant sent his letter response to the Chief Clerk stating that the reason he did not respond was the mail was sent to 3185 Washington Avenue when the correct address was 1385 Washington Avenue. He further advises that he is ready to proceed with his claim, pro se. He also provides a new address to send all future correspondence.

Defendant, in support of its motion, has attached an affidavit of service for the motion documents, a copy of the envelope in which the Demand for Resumption of Prosecution of Action and for Note of Issue was sent and returned (see Exhibit B) along with the affidavit of service for the demand (Exhibit A). These documents each reflect that both the Demand for Resumption of Prosecution of Action and for Note of Issue and the motion documents were sent to “Kenneth Holman, % Ellis, 1385 Washington Avenue, Apt. 3C, Bronx, New York 10456," the correct address.

The CPLR 3216 provides the general authority to dismiss a claim for failure to prosecute. In order to so, all the statutory requirements for dismissal must be met: (1) issue must have been joined; (2) one year must have elapsed since the joinder of issue; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v D.A. Collins Construction Co., Inc., 89 NY2d 499). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580; Juracka v Ferrara, 137 AD2d 921; Ferrara v N.Y. & Atlantic Ry. Co., 25 AD3d 753; but compare Herrington v Saratoga Hosp.,202 AD2d 901). When the demand is not received due to, for instance, the failure to keep the parties and the Court apprised of a change of address then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361). Even when service of the demand is complete and the other statutory conditions are met, the Court still retains discretion to deny the motion to dismiss (Id. at 363).

Here all of the conditions have been met, although Claimant never actually received the demand it was mailed to his correct address as evidenced by Claimant’s motion response and the fact that Claimant received a copy of the motion documents sent to the same address by regular mail. It appears from the postal notice on the returned envelope in which the demand was sent that Claimant simply failed to claim the certified mail.

Nonetheless, the Court denies the motion because although there have been many delays in the prosecution of this claim there has not been a pattern of persistent neglect or extensive delay attributable to Claimant, and Claimant has evidenced an intent to proceed. Claimant, in his response to this motion, reflects his intent to proceed pro se. Thus, the motion is denied.

May 10, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, with exhibits attached thereto.....................................2

Response letter from Claimant dated January 25, 2006........................3