New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2007-015-239, Claim No. 109116, Motion No. M-73682


Motion to dismiss claim for failure to prosecute pursuant to CPLR § 3216 was granted.

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:
Kevin Williams, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for an order dismissing the instant claim for failure to prosecute pursuant to CPLR 3216. No opposition to the motion having been submitted, the motion is granted. Claimant, who was an inmate in the custody of the Department of Correctional Services (DOCS) when this claim was filed, alleges that the defendant was negligent in the handling of his personal property (a television and seven packs of cigarettes) during the course of his transfer from Great Meadow Correctional Facility to Auburn Correctional Facility on November 13, 2003. The claim, which was filed on March 31, 2004, was scheduled for trial on November 17, 2005 but was adjourned at the claimant's request.

Upon learning that the claimant had been released from DOCS' custody, the defendant requested that DOCS provide it with the address to which the claimant had been released. The Department of Parole advised the defendant by correspondence dated January 30, 2007 that the claimant was being supervised by the State of Maryland and provided the defendant with the claimant's last known address on file.

On May 3, 2007 the defendant served upon the claimant, by certified mail, return receipt requested, a demand to resume prosecution and serve and file the note of issue within ninety days pursuant to CPLR 3216. The 90-day demand was returned to the defendant "unclaimed". Review of the Court file in this matter indicates that the last communication from the claimant in this case was his letter dated November 8, 2005 in which he requested the adjournment of his trial. The address indicated on that correspondence was Gouverneur Correctional Facility.

The claimant's failure to serve and file a note of issue within 90 days as demanded or otherwise move to either vacate the demand, or extend his time to file the note of issue, requires that the claim be dismissed for failure to prosecute (CPLR 3216; Court of Claims Act § 19[3]; Dicken v State of New York, 16 AD3d 760 [2005]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2002], lv. denied 100 NY2d 502 [2003]; Nelson v State of New York, 10 Misc 3d 1061[A] [Ct Cl 2005]). Claimant was required to communicate changes in his post office address in writing to the Chief Clerk of the Court in Albany (22 NYCRR § 206.6 [f]). Having failed to communicate his change of address and resume the prosecution of this action, dismissal of the claim for failure to prosecute is appropriate (see Dicken v State of New York, supra; Nelson v State of New York, supra).

Accordingly, the defendant's motion is granted and the claim is dismissed.

October 1, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 28, 2007;
  2. Affirmation of Paul F. Cagino dated June 28, 2007 with exhibits.