New York State Court of Claims

New York State Court of Claims

SHAW v. STATE OF NEW YORK, #2008-037-010, Claim No. 102236, Motion No. M-74469


Synopsis



Case Information

UID:
2008-037-010
Claimant(s):
EDWARD SHAW
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
SHAW
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102236
Motion number(s):
M-74469
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Edward Shaw, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. FriedfertigAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 10:00
A. M.
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 further

ORDERED, that claim no. 102236 is dismissed.


April 2, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims