New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2007-038-541, Claim No. 109997, Motion No. M-73032


Synopsis


Defendant’s unopposed motion to dismiss for want of prosecution (CPLR 3216) granted.

Case Information

UID:
2007-038-541
Claimant(s):
PEDDIE JENKINS
Claimant short name:
JENKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109997
Motion number(s):
M-73032
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
PEDDIE JENKINS, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was filed on October 22, 2004 seeking damages for knee and back injuries allegedly sustained on October 6, 2003 when claimant, an inmate in a State correctional facility, slipped and fell in the kitchen area of Upstate Correctional Facility. Defendant served a verified answer by mail on December 1, 2004. On April 14, 2006, defendant served a demand to file a note of issue (see Cagino Affirmation, Exhibits A and B), which was received by claimant on April 18, 2006 (see Cagino Affirmation, Exhibit B). A note of issue has not been filed by claimant, and defendant now moves pursuant to CPLR 3216 (e) to dismiss the claim.


All of the statutory predicates for dismissal of the claim for want of prosecution have been satisfied (see CPLR 3216 [b]), namely issue was joined by service of the verified answer, more than one year elapsed after joinder of issue and service of the demand to file the note of issue, the written demand was served by certified mail, return receipt requested, and the demand stated that claimant’s failure to file the note of issue within 90 days of receipt of the demand would serve as a basis for a motion to dismiss for unreasonable neglect to proceed. Claimant did not file the note of issue, and he has not opposed or otherwise responded to the instant motion. The postal return receipt signed by claimant demonstrates that he was not incarcerated at the time the demand was served, and thus, he was not excused from complying with it (compare Heggs v State of New York, UID # 2005-032-010, Claim No. 106039, Motion No. M-69501, Hard, J. [Feb. 17, 2005]). Accordingly, defendant’s motion will be granted.

Motion No. M-73032 is GRANTED and Claim No. 109997 is hereby DISMISSED.



June 12, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 109997, filed October 22, 2004;

(2) Verified Answer, filed December 3, 2004;

(3) Demand to File a Note of Issue, filed April 17, 2006;

(4) Notice of Motion to Dismiss, dated March 6, 2007;

(5) Affirmation of Paul F. Cagino, AAG, dated March 6, 2007, with exhibits A-B.