New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-015-220, Claim No. 111142, Motion No. M-73303


Synopsis


Claim dismissed for failure to prosecute pursuant to CPLR 3216.

Case Information

UID:
2007-015-220
Claimant(s):
ELVIN RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111142
Motion number(s):
M-73303
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Elvin Rodriguez, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order dismissing this claim for failure to prosecute pursuant to CPLR 3216. No opposition having been submitted, the motion is granted. This claim for medical malpractice was filed on July 15, 2005. Issue was joined by the service of the defendant's answer on August 23, 2005. By Order dated September 6, 2006 the application to be relieved as counsel for the claimant made by the law firm of Bonina & Bonina P.C. was granted. The Order was required to be personally served on the claimant on or before September 22, 2006. The Order also directed the claimant to notify the Court of the name and address of his new attorney or that he intends to proceed pro se within 45 days following service of the order. Although the Order was personally served on the claimant on September 22, 2006, no notification from the claimant has been received.

On January 22, 2007 the defendant served upon the claimant a demand to resume prosecution of this action and serve and file the note of issue within ninety days. This demand was served by certified mail, return receipt requested, and was received by the claimant on January 27, 2007 as evidenced by the return receipt which he signed on that date (see defendant's Exhibit D). Despite the passage of more than ninety days from the date of receipt of the demand, the claimant has failed to resume prosecution of this action and serve and file the note of issue. There being no opposition to the defendant's motion to dismiss, the motion is granted and the claim is dismissed (see , CPLR 3216 (a); Agnellino v Town of Tioga, 18 AD3d 1007 [2005]).


July 20, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated May 1, 2007;
  2. Affirmation of Belinda A. Wagner dated May 1, 2007 with exhibits.