New York State Court of Claims

New York State Court of Claims

MARTINEZ v. STATE OF NEW YORK, #2008-039-099, Claim No. 107000, Motion No. M-74199


Synopsis


Defendant’s motion to dismiss the claim for failure to prosecute pursuant to CPLR 3216 is denied. The record before the Court reveals that defendant served and filed the instant motion upon claimant prior to expiration of the 90-day period.

Case Information

UID:
2008-039-099
Claimant(s):
PHILLIP MARTINEZ
Claimant short name:
MARTINEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107000
Motion number(s):
M-74199
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Phillip Martinez, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John M. ShieldsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim was commenced on November 27, 2002 and issue was joined. Claimant alleges that he sustained injuries as a result of actions by the State (hereinafter “defendant”) constituting, among other things, libel, slander and defamation when he “was wrongly accused by a N.Y.S. Court Officer of making inappropriate comments (i.e. that claimant could burn down the courthouse) and/or gestures.”

By Decision and Order dated June 4, 2003, the Court (Lack, J.) granted an application by claimant’s counsel to be relieved of his representation. At that time, the Court’s (Lack, J.) order provided, among other things, that “[i]n the event that claimant is not ready to proceed within 60 days of service of this order, the Court will entertain an application to dismiss for failure to prosecute.”

On January 22, 2007, defendant brought a motion to dismiss the claim for failure to prosecute. By Decision and Order dated August 10, 2007, the Court (Ferreira, J.) noted the “significant lack of activity in the claim since approximately June 2003 when the Court (Lack, J.) relieved claimant’s counsel of his representation,” but denied defendant’s motion to dismiss the claim. The Court based its decision, in part, upon the lack of a 90-day demand by defendant for claimant to resume prosecution of his claim pursuant to CPLR 3216. The Court (Ferreira, J.) ordered claimant “to retain substitute counsel and file notice thereof with the Clerk of the Court, or to file a note of issue and certificate of readiness with the Court, within 90 days from the date of service upon him of this Decision and Order.” The Court further stated that “[c]laimant’s failure to comply with this Decision and Order may result in dismissal of the claim.”

Defendant now moves the Court for a second time seeking an order dismissing the claim pursuant to CPLR 3216 based upon claimant’s alleged failure to prosecute the claim.

CPLR 3216 (a) provides that

“[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.”


It is well settled, however, that “[a]ny motion to dismiss the complaint for the plaintiffs’ general delay in prosecuting the action must be preceded by a written demand to file a note of issue pursuant to CPLR 3216 [citation omitted], and the defendant must then await the expiration of the 90-day period before moving to dismiss on this ground” (Weber v Kessler, 224 AD2d 520, 521 [1996]; see also Divjak v New York Hospital-Cornell Medical Center, 219 AD2d 695, 696 [1995]; Lyons v Butler, 134 AD2d 576 [1987]). Where a motion to dismiss the claim for failure to prosecute is served prior to expiration of the 90-day period, the Court lacks jurisdiction to entertain the motion (see id.).

The record before the Court reveals that on August 16, 2007 the Chief Clerk of the Court of Claims served upon the parties certified copies of the Court’s (Ferreira, J.) August 10, 2007 Decision and Order. Accordingly, expiration of the 90-day period occurred on November 14, 2007. The record before the Court further reveals that defendant served and filed the instant motion prior to expiration of the 90-day period. More specifically, defendant served the motion upon claimant on November 9, 2007 (see Affidavit of Service) and filed the motion with the Court on November 13, 2007. Thus, the Court is constrained to find that it lacks jurisdiction to entertain the motion (see Weber v Kessler, supra; Divjak v New York Hospital-Cornell Medical Center, supra; and Lyons v Butler, supra).

Accordingly, it is hereby ordered that M-74199 is denied.


October 28, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated November 9, 2007;
  1. Affirmation in Support of Motion to Dismiss by John M. Shields, AAG sworn to on November 9, 2007 with exhibits;
  1. Affidavit in Reply to Motion to Dismiss by Phillip Martinez sworn to on June 29, 2008 with exhibits; and
  1. Reply Affirmation by John M. Shields, AAG dated July 1, 2008.