This is a medical malpractice action which arose in February of 2000 when the
pro se Claimant was allegedly denied adequate medical care while incarcerated at
Lakeview Correctional Facility. The claim was filed on April 5, 2000 and the
answer was filed on June 12, 2000. In July of 2004, the Claimant, Edward Shaw,
was released from custody.
In January of 2008, Defendant made a motion (M-74469) to dismiss the claim and
for an order precluding Claimant from offering evidence at trial in the event
Claimant failed to respond to Defendant’s discovery demands. The motion
was calendared to be submitted on March 26, 2008. Defendant forwarded a copy of
its motion papers to Claimant at his last known address: 877 Taylor Avenue, Apt.
4B, Bronx, New York 10473. The United States Postal Service subsequently
returned the envelope containing the copy of the motion papers to the Defendant.
On the envelope was hand written, “Please return to Sender. ‘No
Shaw’ in this apt.”
On February 14, 2008, Defendant’s counsel wrote to the Postmaster of the
United States Postal Service forwarding a copy of the envelope containing the
returned motion papers and inquiring about the claimant’s address.
Finally, on March 31, 2008, the United States Postal Service advised that
Claimant’s address was “Good as Addressed.”
By letter dated February 19, 2008, the Court directed Claimant to appear by
phone and Defendant’s counsel to appear in person on March 26, 2008 at
for a conference. Claimant was advised that his failure to appear could result
in the dismissal of his claim. The Court’s letter to Claimant scheduling
the conference was sent to the same address used by Defendant. It was not
returned by the United States Postal Service and was presumed delivered.
Claimant failed to appear on March 26, 2008 and failed to otherwise contact the
Court. Defendant’s counsel then moved to dismiss the claim pursuant to 22
NYCRR 206.10 (g).
Based on Claimant’s failure to appear at the March 26, 2008 conference,
it is hereby
ORDERED, that Defendant’s motion (M-74469) is denied as moot; and it is
ORDERED, that claim no. 102236 is dismissed.