New York State Court of Claims

New York State Court of Claims

CEDENO v. THE STATE OF NEW YORK, #2008-038-622, Claim No. 109673, Motion No. M-75411


Synopsis


Defendant’s motion to dismiss for failure to prosecute pursuant to CPLR 3216 granted.

Case Information

UID:
2008-038-622
Claimant(s):
JESUS CEDENO
Claimant short name:
CEDENO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109673
Motion number(s):
M-75411
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JESUS CEDENO, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 5, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual formerly incarcerated in a State Correctional Facility, filed this claim on July 29, 2004, alleging that on July 14, 2004, claimant sustained injuries while being transported in a bus that struck a concrete divider on the premises of Wallkill Correctional Facility. The claim alleges that defendant was negligent with respect to its operation of the vehicle and in permitting a dangerous condition to exist on its premises. Defendant filed its verified answer on September 10, 2004. But for notifying the Clerk of the Court in December 2004 of his new address at Sullivan Correctional Facility, claimant has taken no further action to prosecute the claim. By notice of motion dated August 8, 2008, defendant moves to dismiss the claim for failure to prosecute. As conditions precedent to a motion to dismiss for want of prosecution, CPLR 3216 (b) requires that issue must have been joined, that one year must have elapsed since joinder of issue, and that a written demand to resume prosecution of the action and file a note of issue within ninety days be served in the manner required by CPLR 3216 (b)(3). Here, as indicated above, issue was joined in September 2004, and defendant served a 90-day demand to file a note of issue by certified mail, return receipt requested and by regular first claim mail, on March 18, 2008 (see Cagino Affirmation, Exhibits E & F), at the address to which he was released by the Department of Correctional Services in July 2005 (see Cagino Affirmation, Exhibits C & D). Thus, defendant has complied with the requirements of CPLR 3216 (b). The United States Postal Service receipt was signed by claimant on March 21, 2008 (see Cagino Affirmation, Exhibit E). Claimant has not filed the Note of Issue, he has not submitted opposition to defendant’s motion, nor has he otherwise acted to resume prosecution of this claim. Accordingly, and pursuant to CPLR 3216 (a), it is

ORDERED, that Motion No. M-75411 is GRANTED and Claim No. 109673 is DISMISSED.


November 5, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 109673, filed July 29, 2004;

(2) Verified Answer, filed September 10, 2004;

(3) Notice of Motion to Dismiss, dated August 8, 2008;

(4) Affirmation of Paul F. Cagino, AAG, dated August 8, 2008, with Exhibits A-F.