New York State Court of Claims

New York State Court of Claims

BOSCH v. THE STATE OF NEW YORK, #2006-033-206, Claim No. 109404, Motion No. M-71835


Case Information

MAUREEN BOSCH, as Administratrix of the Estate of HARRY JOHN BOSCH, deceased
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):

James J. Lack
Claimant’s attorney:
Maureen Bosch, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries sustained by Harry John Bosch (hereafter "decedent") as the result of alleged medical malpractice by the State of New York (hereinafter “defendant”). The claim is brought by Maureen Bosch, the Administratrix of the Estate of Mr. Bosch (hereinafter “claimant”).

Previously, this Court granted an Order to Show Cause of claimant’s prior counsel to be relieved (M-70432 filed October 5, 2005). Claimant was granted 60 days to find new counsel or appear pro se in this matter. Claimant has not appeared either by counsel or pro se since the filing of said order. Defendant moves this Court for an order dismissing the claim pursuant to CPLR 3216[1].

CPLR 3216 provides that a claim may be dismissed for lack of prosecution either on the court’s own motion or the motion of a party. Before dismissing the case, the following conditions, pursuant to CPLR 3216(b), must be met:
(1) Issue must have been joined in the action;

(2) One year must have elapsed since the joinder of issue;

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said [ninety] day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

Issue was joined in this matter on or about June 30, 2004, when defendant filed its answer. Thus, the first two conditions of CPLR 3216 have been met. Defendant served claimant with a 90 day notice on February 15, 2006. More than 90 days passed before defendant filed this motion on June 9, 2006. Claimant has submitted no opposition to this motion.
Based upon the foregoing, defendant’s motion to dismiss the claim is granted. The Clerk of the Court is directed to close the file.
September 28, 2006
Hauppauge, New York
Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss for Want of Prosecution dated June 7, 2006 and filed June 9, 2006; Affirmation in Support of Mary Y.J. Kim, Esq. with annexed Exhibits A-D dated June 7, 2006 and filed June 9, 2006.