New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2007-041-039, Claim No. 105397, Motion No. M-73731


Synopsis


Inmate-on-inmate assault claim is dismissed for failure to prosecute.

Case Information

UID:
2007-041-039
Claimant(s):
RAMELLO ALLEN
Claimant short name:
ALLEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105397
Motion number(s):
M-73731
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
RAMELLO ALLENPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 29, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss this claim which alleges that claimant was injured due to defendant’s negligence in permitting claimant to be assaulted by a fellow inmate at Upstate Correctional Facility. Defendant moves pursuant to CPLR 3216, asserting that claimant has unreasonably failed to serve and file a note of issue. Claimant has offered no opposition to the motion.

The claim was served on the Attorney General on November 28, 2001 and filed at the Court of Claims on December 27, 2001. Defendant’s answer was served on December 13, 2001 and filed on December 17, 2001.
On November 7, 2005, claimant advised the Court of Claims in writing that his new address was PO Box 920564, Arverne, New York 11692. The claimant was released from incarceration by the New York State Department of Correctional Services (DOCS) on November 8, 2005. On April 4, 2006, defendant requested claimant’s releasing address from DOCS and DOCS provided the same address claimant had provided to the Court of Claims: PO Box 920564, Arverne, New York 11692. On February 10, 2006, the Clerk of the Court of Claims notified claimant in writing of a calendar call involving the claim. The notice was sent to PO Box 920564, Arverne, New York 11692 and was received by claimant who responded in writing on March 1, 2006.

On May 25, 2006, defendant requested claimant’s address from the U.S. Postal Service and was provided a residence address of 564 Beach 65 Street, Arverne, New York 11692. On August 29, 2006, defendant again requested claimant’s residence address from the U.S. Postal Service and was again provided a residence address of 564 Beach 65 Street, Arverne, New York 11692.

On October 16, 2006, defendant served upon claimant, by certified mail, return receipt requested, a demand pursuant to CPLR 3216 requiring claimant to serve and file a note of issue within ninety (90) days after receipt of the demand. The CPLR 3216 demand was addressed to claimant at 564 Beach 65 Street, Arverne, New York 11692. The certified mailing was returned as “return to sender, not deliverable as addressed, unable to forward.”

On February 7, 2007, defendant again served upon claimant, by certified mail, return receipt requested, a demand pursuant to CPLR 3216 requiring claimant to serve and file a note of issue within ninety (90) days after receipt of the demand. The CPLR 3216 demand was addressed to claimant at PO Box 920564, Arverne, New York 11692. The certified mailing was again returned as “return to sender, attempted - not known, unable to forward.”

On May 29, 2007, the Court notified claimant by letter addressed to PO Box 920564, Arverne, New York 11692, pursuant to its regular office practice of providing conference notification by first class mail, that a conference was scheduled for June 28, 2007 at 10:30 a.m. by telephone and that claimant should provide the Court with his telephone number. The letter was not returned to the Court by the U.S. Postal Service and is presumed to have been received by claimant (see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]). The claimant thereafter failed to provide a telephone number or otherwise appear for the conference.

CPLR Rule 3216 (a) provides, at relevant part, as follows:
“Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.”
Defendant has complied with the requirements of CPLR 3216 by offering proof that more than one year has elapsed since the joinder of issue and by showing that it has:
“[S]erved a written demand by registered or certified mail 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 ninety 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” (CPLR Rule 3216 [b] [3]).
The claim must be dismissed based upon claimant’s failure to file and serve a note of issue, as demanded.
The claim is also dismissed pursuant to § 206.10 (g) of the Uniform Rules for the Court of Claims based upon claimant’s failure to appear for the scheduled conference of June 28, 2007 at 10:30 a.m.

The defendant’s motion is granted and the claim is dismissed.


August 29, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion to Dismiss, filed July 13, 2007;
  2. Affirmation of Paul F. Cagino, dated July 12, 2007, with annexed exhibits.