New York State Court of Claims

New York State Court of Claims

BURDICK v. THE STATE OF NEW YORK, #2008-015-104, Claim No. 110175, Motion No. M-75444


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:
John L. Burdick, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 10, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the instant claim for failure to prosecute pursuant to CPLR 3216. This claim alleging causes of action for assault and false arrest was filed by Elmer Robert Keach III, Esq., on behalf of the claimant. By Decision and Order filed April 19, 2007 Mr. Keach was relieved as counsel for the claimant and directed to serve a copy of the Decision and Order upon the claimant by both certified mail return receipt requested and ordinary mail. The Decision and Order provided that "the claimant shall notify the Court within thirty days after receipt of this decision and order of the substitution of counsel or that he intends to proceed pro se . . . "

Affidavits of service filed by Mr. Keach reflects that the claimant was indeed served with a copy of the Decision and Order on May 1, 2007 by both certified and regular mail.

The claimant failed to notify the court of the substitution of counsel or his intention to proceed pro se and on May 5, 2008 defendant served claimant with a demand to resume prosecution of this action by serving and filing the note of issue within 90 days following receipt of the demand. The 90-day demand was served by both certified mail and regular mail at claimant's address in Eagle Bridge, New York. The certified mail return receipt was signed by the claimant on May 10, 2008 (see defendant's Exhibit D) and defense counsel attests to the fact that the demand served by regular mail was not returned.

The claimant's failure to serve and file the note of issue within 90 days 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]). Although the claimant indicates in opposition to the motion that he has been unable to retain an attorney and has no money, this excuse is unavailing in light of the period of time which has elapsed since the date claimant was served with the Decision and Order placing him on notice to obtain new counsel or proceed pro se.

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 10, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 25, 2008;
  2. Affirmation of Paul F. Cagino dated August 25, 2008 with exhibits;
  3. "Motion and Claim to Refute a Claim to Dismiss on the Reasons Below" of John L. Burdick dated and notarized August 29, 2008.