New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2008-038-623, Claim No. 107446, Motion No. M-75439


Defendant’s motion to dismiss for failure to prosecute pursuant to CPLR 3216 granted. Service of 90-day demand was made to claimant’s last known address (CPLR 2103 [b][2]; [c]).

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:
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

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim on March 10, 2003 alleging that in late 2002, medical staff at Ulster Correctional Facility failed to adequately diagnose whether or not claimant had “TB.” It further alleges that due to lack of infirmary space, claimant was housed in a Special Housing Unit (SHU) at Ulster Correctional Facility and treated as a disciplinary SHU inmate. Defendant filed and served its verified answer and a demand for a verified bill of particulars on April 23, 2003. Claimant was apparently released from the custody of the Department of Correctional Services (DOCS) on August 20, 2004 (see Cagino Affirmation, Exhibit C), and has taken no further action to prosecute the claim. Defendant served a 90-day demand to file a note of issue by certified mail, return receipt requested on January 30, 2008 (see Cagino Affirmation, Exhibit E), and again by first class mail on February 26, 2008 (Cagino Affirmation, Exhibit F) on claimant at an address provided by DOCS (see Cagino Affirmation, Exhibit D). By notice of motion dated August 1, 2008, defendant now 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). As noted above, issue was joined on April 23, 2003 and service of the 90-day demand was made upon claimant at the address to which he was released by the DOCS in July 2005 (see Cagino Affirmation, Exhibits C & D), which is a more recent address than that last provided to the Court by claimant (see 22 NYCRR § 206.6[f]). The United States Postal Service receipt was returned unsigned by claimant, and the envelope sent via first class mail was returned as undeliverable (see Cagino Affirmation, Exhibits E & F). It is noted that correspondence sent from the Clerk of the Court to claimant on August 26, 2008 to the correctional facility address last known to the Clerk of the Court and to the street address provided by DOCS have been returned to the Court as undeliverable, as well.

Although it appears that claimant did not receive the 90-day demand because all correspondence mailed to him has been returned to the sender, the demand was served upon this pro se claimant at his last known address, in accordance with CPLR 2103 (see CPLR 2103 [b][2]; [c]; see also Allen v State of New York, UID # 2007-041-039, Claim No. 105397, Motion No. M-73731, Milano, J. [Aug. 29, 2007]). As more than one year has elapsed between joinder of issue and defendant’s service of the 90-day demand, the pre-conditions of CPLR 3216 (b) have been met. Claimant has not filed a note of issue nor taken any other action on this claim. Accordingly, it is

ORDERED, that Motion No. M-75439 is GRANTED, and Claim No. 107446 is DISMISSED.

November 5, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 107446, filed March 10, 2003;

(2) Verified Answer, filed April 23, 2003;

(3) Notice of Motion to Dismiss, dated August 1, 2008;

(4) Affirmation of Paul F. Cagino, AAG, dated August 1, 2008, with Exhibits A-F.