New York State Court of Claims

New York State Court of Claims

DOZIER v. THE STATE OF NEW YORK, #2008-015-040, Claim No. 110897, Motion No. M-74665


Synopsis


Motion to dismiss for failure to prosecute pursuant to CPLR 3216 was granted without opposition.

Case Information

UID:
2008-015-040
Claimant(s):
GARY DOZIER
Claimant short name:
DOZIER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110897
Motion number(s):
M-74665
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Gary Dozier, No Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order pursuant to CPLR 3216 dismissing the claim for failure to prosecute. Claimant, an inmate at the time the claim was filed on May 17, 2005, alleged that he was injured on April 18, 2005 as follows:
“Due to no efforts of fixing the window in R.S.A.T. classroom I was strecthing [sic] my arms and the window came down and broke on my right hand then had to receive 3 sticthes [sic] . Now currently I have pain in my hand thats [sic] severe and now it’s very hard to grab something without pain.”
Issue was joined by service of defendant’s answer on June 14, 2005. On October 18, 2007 the defendant served the claimant, by certified mail, with a demand to resume prosecution of this action and serve and file the note of issue within ninety days. Claimant had been released from prison at that point and the demand was sent to the claimant at his new address.[1] Claimant received the demand on October 20, 2007 as evidenced by the return receipt which he signed on that date. Despite the passage of more than ninety days, the claimant has failed to resume prosecution of this action and serve and file the note of issue. There being no opposition to the defendant's motion to dismiss, the motion is granted and the claim is dismissed (see CPLR 3216; Agnellino v Town of Tioga, 18 AD3d 1007 [2005]) .


May 29, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 22, 2008;
  2. Affirmation of Paul F. Cagino dated February 22, 2008 with exhibits.

[1]. Claimant notified the Court by letter dated June 3, 2005 of his anticipated release and new address.