New York State Court of Claims

New York State Court of Claims

WALLACE v. THE STATE OF NEW YORK, #2008-015-100, Claim No. 110448, Motion No. M-75353


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

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Terrance Wallace, 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:
December 4, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of the instant claim for failure to prosecute pursuant to CPLR 3216. No opposition to the motion having been submitted, the motion is granted. Claimant alleges that on October 31, 2004 he was confined to a special housing unit for a disciplinary infraction for which he was found not guilty on November 9, 2004. Notwithstanding this finding, the claimant alleges that he was not released from the special housing unit until November 11, 2004. The claim was filed on February 2, 2005 and issue was joined by service of defendant's answer on March 11, 2005.

On January 30, 2008 defendant served claimant with a demand to resume prosecution of this action and serve and file the note of issue within 90 days following receipt of the demand. Claimant was released to parole supervision on July 11, 2005 and defense counsel was advised by the Inmate Records Coordinator at Mt. McGregor Correctional Facility on January 4, 2008 that he had been released to the custody of the Immigration and Naturalization Service with an address approved by parole in Hollis, New York (see defendant's Exhibit D). The 90-day demand was served by certified mail at claimant's address in Hollis, New York and the return receipt was signed by an individual on behalf of the claimant on February 1, 2008 (see defendant's Exhibit E). Defense counsel indicates that recent inquiry with the New York State Division of Parole disclosed that the claimant was deported to Guyana on September 7, 2005. Thus, it appears that the claimant did not reside at the address to which the 90-day demand was sent. To date, the note of issue has not been filed nor has any other activity been undertaken to prosecute this action.

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]). The fact that claimant may not have resided at the address to which the 90-day demand was sent is of no consequence inasmuch as claimant was required to communicate changes in his post office address in writing to the Clerk within 10 days thereof (see 22 NYCRR § 206.6 [f]).

The conditions precedent to dismissal set forth in CPLR 3216 (b) having been met, the defendant's motion for dismissal pursuant to CPLR 3216 is granted and the claim is dismissed.

December 4, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The court considered the following papers:
  1. Notice of motion dated August 6, 2008;
  2. Affirmation of Paul F. Cagino Dated August 6, 2008 with exhibits.