For the reasons set forth below, the State’s motion to dismiss for
failure to prosecute is denied.
The Claim, filed with the Clerk of the Court on March 24, 2004, seeks to
recover damages for the loss of Claimant’s personal property in November
2003 while he was housed at Upstate Correctional Facility located in Malone.
The Claim was served upon the Defendant on March 29, 2004 (Cagino Affirmation,
¶ 3). Issue was joined by the service and filing of a Verified Answer on
April 30, 2004 (id., ¶ 4). Claimant was released from the custody of
the New York State Department of Correctional Services (hereinafter DOCS) on
December 29, 2006 (see Ex. A attached to State’s Motion).
On June 26, 2007, the Defendant, by certified mail, return receipt requested,
served upon Claimant, at the address he provided to DOCS when he was released
from custody, a notice demanding that he resume prosecution of this action
pursuant to CPLR Rule 3216 and directing him to serve and file a note of issue
within 90 days of receipt of the demand. The demand further specified that a
motion to dismiss the Claim for unreasonably neglecting to proceed would result
from Claimant’s default (Ex. C attached to Motion). The document was
returned by the postal service with the unsigned return receipt card attached.
The envelope contained the notation, “Returned to Sender ...
Unclaimed” (Ex. D attached to Motion).
CPLR 3216 provides the general authority to dismiss a Claim for failure to
prosecute. In order to do so, all the statutory requirements for dismissal must
be met: (1) issue must have been joined; (2) one year must have elapsed since
the joinder of issue; and (3) a written demand must be served upon the party by
certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co.,
Inc., 89 NY2d 499, 503 ). Service is complete when the demand is
received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2nd Dept
1999]). When the demand is not received due to, for instance, the failure to
keep the parties and the Court apprised of a change of address, then service is
deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121
AD2d 361, 361 [2nd Dept 1986]; Allen v State of New York, Claim No.
105397, Motion No. M-73731, dated August 29, 2007, Milano, J. [UID No.
Here, all of the conditions have been met. Although Claimant never actually
received the demand, it was mailed to his last-known address. It appears, from
the postal notice on the returned envelope in which the demand was sent, that
Claimant failed to claim the certified mail for some unknown reason. Claimant
was served with a copy of the motion papers at the same address and has failed
to submit any opposition to the instant application.
This Claim was filed approximately three and a half years ago and involves an
incident which occurred almost four years ago. A review of the Court’s
file indicates that the Court last received correspondence from Claimant in
December 2006, some nine months ago, advising the Court of his new address.
There has been a lack of activity with regard to the Claim as it appears that
Claimant has not conducted any pre-trial discovery. However, Claimant has not
received the State’s 90-day demand, as he did not claim his certified mail
letter. Affording Claimant every benefit of the doubt, the Court concludes
that the motion to dismiss the Claim for lack of prosecution must be denied
(see Martinez v State of New York, Claim No. 107000, Motion No. M-72862,
dated August 10, 2007, Ferreira, J. [UID No. 2007-039-033]). The Chief Clerk is
directed to serve a copy of this Decision and Order upon Claimant at his
last-known address by certified mail, return receipt requested and by
first-class mail. Claimant is hereby ordered to file a note of issue and
certificate of readiness with the Clerk of the Court within ninety (90) days
from the date of service upon him of this Decision and Order. Claimant’s
failure to comply with this Decision and Order will result in dismissal of his
Claim for failure to prosecute pursuant to CPLR 3216.