New York State Court of Claims

New York State Court of Claims

CIRULLO v. THE STATE OF NEW YORK, #2008-015-087, Claim No. 112409, Motion No. M-75154


Synopsis


Claim was dismissed for failure to prosecute pursuant to CPLR 3216.

Case Information

UID:
2008-015-087
Claimant(s):
JOHN CIRULLO
Claimant short name:
CIRULLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112409
Motion number(s):
M-75154
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
The Jacob D. Fuchsberg Law Firm, LLPNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 17, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order dismissing the instant claim for failure to prosecute pursuant to CPLR 3216. No opposition to the motion having been submitted, the motion is granted. Claimant by his attorney alleges the defendant was negligent in failing to provide proper emergency medical care and treatment for injuries sustained by the claimant on March 11, 2006 at Belleayre Mountain ski resort. The claim was filed on June 7, 2006 and issue was joined by service of the defendant's answer on July 11, 2006. By Order dated September 19, 2006 the parties were directed to complete disclosure and file the note of issue by August 23, 2007. During a telephone conference with the attorneys for the parties on January 3, 2008, claimant's counsel advised the Court that a discontinuance of the action was contemplated and that he would inform the Court of same within three weeks. Having not been so informed, on February 11, 2008 the Court served a demand that claimant resume prosecution of the action and serve and file a note of issue placing this action on the calendar for trial within 90 days after receipt of the demand (defendant's Exhibit A). The demand was served upon counsel for the claimant by certified mail, return receipt requested. The return receipt reflects that the demand was received on February 14, 2008. To date, the note of issue has not been filed nor is the motion to dismiss for failure to prosecute opposed.

The claimant's failure to serve and file the note of issue within 90 days as demanded or otherwise move to either vacate the demand or extend his time to file the note of issue requires that the claim be dismissed for failure to prosecute (CPLR 3216; Court of Claims Act § 19 [3]; Dickan v State of New York, 16 AD3d 760 [2005]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2002], lv denied 100 NY2d 502 [2003]; Nelson v State of New York, 10 Misc 3d 1061[A] [Ct Cl 2005]).

Accordingly, the defendant's motion is granted and the claim is dismissed.


November 17, 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 June 23, 2008;
  2. Affirmation of Glenn C. King dated June 23, 2008 with Exhibit.