New York State Court of Claims

New York State Court of Claims

CABAN v. THE STATE OF NEW YORK, #2008-015-093, Claim No. 110809, Motion No. M-75403


Synopsis


Defendant's motion to dismiss claim for failure to prosecute pursuant to CPLR 3216 was granted.

Case Information

UID:
2008-015-093
Claimant(s):
JUAN CABAN
Claimant short name:
CABAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110809
Motion number(s):
M-75403
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Juan Caban, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 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. This medical malpractice claim was filed by the claimant pro se in April 2005 alleging that his complaints of severe abdominal pain were improperly treated. Although the claimant was incarcerated at the time the claim was filed, by letter dated November 30, 2006 he notified the defendant of his release from prison and his new address in the State of Florida. On March 18, 2008 the defendant served a demand that claimant resume prosecution of the action and serve and file a note of issue (defendant's Exhibit E). The demand was served upon claimant at his address in Florida and the return receipt reflects that it was received and signed by the claimant on March 22, 2008. To date, the note of issue has not been filed despite the passage of more than 90 days since the date the demand was served.

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 19, 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 August 8, 2008;
  2. Affirmation of Paul F. Cagino dated August 8, 2008 with exhibits.