New York State Court of Claims

New York State Court of Claims

MARTINEZ v. STATE OF NEW YORK, #2007-039-033, Claim No. 107000, Motion No. M-72862


Synopsis


Defendant’s motion to dismiss the claim for want of prosecution is denied. Defendant did not serve a 90-day demand on claimant pursuant to CPLR 3216. Nor did the Court’s prior order have the same effect as a valid 90-day demand since claimant was not directed to file a note of issue by a date certain and notified that his failure to do so may result in dismissal of the claim.

Case Information

UID:
2007-039-033
Claimant(s):
PHILLIP MARTINEZ
Claimant short name:
MARTINEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107000
Motion number(s):
M-72862
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Phillip Martinez, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John M. ShieldsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 10, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was served upon the Attorney General of the State of New York on November 27, 2002 and issue was joined. Claimant alleges that he sustained injuries as a result of actions by the State (hereinafter “defendant”) constituting, among other things, libel, slander and defamation when he “was wrongly accused by a N.Y.S. Court Officer of making inappropriate comments (i.e. that claimant could burn down the courthouse) and/or gestures.” By Decision and Order dated June 4, 2003, the Court (Lack, J.) granted counsel’s motion to be relieved of his representation of claimant. The Court’s (Lack, J.) order further provided that “[i]n the event that claimant is not ready to proceed within 60 days of service of this order, the Court will entertain an application to dismiss for failure to prosecute.” Defendant now moves the Court for an order dismissing the claim for want of prosecution.

CPLR 3216 permits the court, “on its own initiative or upon motion,” to dismiss a claim for want of prosecution. One of the enumerated conditions precedent to dismissal is that
“[t]he court or party seeking such relief . . . shall have served a written demand . . . 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 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” (see CPLR 3216 [b] [3]).
In Koscinski v St. Joseph’s Med. Ctr., (24 AD3d 421, 421-422 [2005]), the Appellate Division held that the trial court’s compliance order, “which directed [plaintiff] to file a note of issue by a date certain . . . had the same effect as a valid 90-day demand under CPLR 3216, since it specifically stated that the failure to comply may result in dismissal of the action” (id.). Since plaintiff failed to establish a reasonable excuse for his default, the Appellate Division concluded that “it was an improvident exercise of discretion to deny the appellant’s motion to dismiss the complaint insofar as asserted against him and to grant the plaintiff’s motion to restore the case to ‘active status’ ” (id., at 422).

Additionally, in Sloane v Kopp, (272 AD2d 795 [2000], lv denied 95 NY2d 763 [2000]), defendant served 90-day demands upon plaintiffs in compliance with CPLR 3216. Upon the expiration of the 90-day period, the trial court granted a motion by plaintiffs’ counsel to be relieved of his representation, and defendants cross-moved to dismiss the complaint for failure to prosecute (id., at 795). The trial court directed plaintiffs “to obtain substitute counsel within 30 days or the complaint would be dismissed with prejudice” (id.). The trial court permitted plaintiffs an extension of time beyond the 30 days to obtain substitute counsel after which the complaint was dismissed with prejudice when plaintiffs appeared on the adjourned date without counsel (id., at 796). Upon appeal, the Appellate Division affirmed the trial court’s dismissal of the complaint based upon
“the lack of activity in [the] action since November 1997, the additional time afforded to plaintiffs based upon their representation that they were in the process of retaining new counsel, the clear warning that their failure to retain substitute counsel within the time allowed would result in dismissal with prejudice and the absence of both an excuse for their failure to retain substitute counsel and an affidavit demonstrating the merits of their claims” (id.).

Here, as in Sloane v Kopp, (supra), there has been a significant lack of activity in the claim since approximately June 2003 when the Court (Lack, J.) relieved claimant’s counsel of his representation, and claimant has failed to establish a reasonable excuse for the dormancy of his claim. However, unlike the circumstances presented in Sloane, (supra), defendant has not served a 90-day demand upon claimant. Moreover, unlike the circumstances presented in Koscinski v St. Joseph’s Med. Ctr., (supra), the Court’s (Lack, J.) prior order did not have “the same effect as a valid 90-day demand under CPLR 3216" since claimant was not directed to file a note of issue by a date certain and notified that his failure to do so may result in dismissal of the claim. Thus, affording claimant every benefit of the doubt, the Court concludes that defendant’s motion to dismiss the claim for want of prosecution must be denied. Furthermore, claimant is hereby ordered to retain substitute counsel and file notice thereof with the Clerk of the Court, or to file a note of issue and certificate of readiness with the Court, within 90 days from the date of service upon him of this Decision and Order. Claimant’s failure to comply with this Decision and Order may result in dismissal of the claim (see Koscinski, supra).

Accordingly, it is hereby

ORDERED that M-72862 is denied; and it is further

ORDERED that claimant’s failure to retain substitute counsel and file notice thereof with the Clerk of the Court, or to file a note of issue and certificate of readiness with the Clerk of the Court, within 90 days from the date of service upon him of this Decision and Order may result in dismissal of the claim.

August 10, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated January 22, 2007;
  2. Affirmation in Support of Motion to Dismiss dated January 22, 2007 with exhibits; and
  3. Affidavit in Opposition to Motion to Dismiss sworn to on May 10, 2007 with exhibits.