New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2008-040-047, Claim No. 109279, Motion No. M-75094


State motion to dismiss for failure to prosecute (CPLR 3216) granted. Claim dismissed.

Case Information

JULIO PEREZ #94-A-5968
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:
Julio Perez, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the State’s motion to dismiss for failure to prosecute is granted.

The Claim, filed with the Clerk of the Court on April 30, 2004, seeks to recover damages for alleged improper medical care Claimant received regarding an injury to his shoulder while he was housed at Upstate Correctional Facility located in Malone, New York. The Claim was also served upon the Defendant on April 30, 2004 (Cagino Affirmation, ¶ 3). Defendant served its Verified Answer on June 2, 2004 (id., ¶ 4). Claimant was released from the custody of the New York State Department of Correctional Services (hereinafter DOCS) on August 10, 2006 (see Ex. C attached to State’s Motion).

On January 14, 2008, Defendant, by certified mail, return receipt requested, served upon Claimant, at the address he provided to DOCS when he was released from custody, a notice demanding that he resume prosecution of this action pursuant to CPLR 3216 and directing him to serve and file a note of issue within 90 days of receipt of the demand. The demand further specified that a motion to dismiss the Claim for unreasonably neglecting to proceed would result from Claimant’s default (Ex. E attached to Motion). The document was returned by the postal service with the unsigned return receipt card attached. The envelope contained the notation, “Return to Sender ... Unclaimed... Unable to Forward” (Ex. E attached to Motion).

On February 26, 2008, Defendant, by regular mail, served upon Claimant, at the address noted in the preceding paragraph, a copy of the notice described in the preceding paragraph (Ex. F attached to Motion). Defense counsel avers that the document served by regular mail has not been returned (Cagino Affirmation, ¶ 8).

CPLR 3216 provides the general authority to dismiss a Claim for failure to prosecute. In order to do so, all the statutory requirements for dismissal must be met: (1) issue must have been joined; (2) one year must have elapsed since the joinder of issue; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1997]). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2d Dept 1999]). When the demand is not received due to, for instance, the failure to keep the parties and the Court apprised of a change of address, then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]; Allen v State of New York, Ct Cl, Claim No. 105397, Motion No. M-73731, dated August 29, 2007, Milano, J. [UID No. 2007-041-039]).

Here, all of the conditions have been met. Although Claimant never actually received the demand by certified mail, return receipt requested, it was mailed to his last-known address. In addition, the demand that was served by regular mail was not returned to the Attorney General’s office. Claimant was also served with a copy of the motion papers at the same address and has failed to submit any opposition to the instant application.

Unlike the situation presented to this Court in Davis v State of New York (Ct Cl, Claim No. 109079, Motion No. M-73808, dated November 9, 2007, McCarthy, J. [UID No. 2007-040-050]) where service of the demand was only by certified mail, return receipt requested, the envelope was returned as unclaimed, and the Court denied the State’s motion to dismiss for failure to prosecute based on the lack of service, in this instance, the State also served the demand by regular mail and it was not returned.

The Court notes that the letter sent to Mr. Perez by the Clerk of the Court informing him of the return date of the instant motion was returned to the Court with a handwritten notation stating “Again! he [sic] doesn’t live here never did. He [sic] address is unknown. tampa, fl [sic].”

In accordance with Chapter 156 of the Laws of 2008, which amends CPLR 205(a), the Court notes that the Claim was filed over four years ago. Claimant’s last contact with the Court was by letter, received by the Court on June 21, 2004. The last action in connection with the Claim, prior to the instant motion, was a decision and order by Judge Hard that denied Claimant’s request for the assignment of counsel. Claimant was released from DOCS custody nearly 23 months ago. There is nothing in the Court’s records to indicate that any disclosure or other activity has occurred since the Claim was filed. Finally, the Court notes that, pursuant to § 206.6(f) of the Uniform Rules for the Court of Claims, changes in the address or telephone number of a pro se claimant shall be communicated in writing to the Clerk of the Court within ten days of the change. It appears that Claimant has failed to comply with the rules of this Court requiring that he keep the Court apprised of his current address. Based upon his failure to comply with the Court rules, it is impossible for the Court (or Defendant) to communicate with Claimant. Thus, the Court determines that Claimant’s conduct demonstrates a general pattern of delay in proceeding with his Claim. The Court further concludes that Claimant has neglected his Claim and lost interest in prosecuting it.

Based upon the foregoing, Defendant’s motion to dismiss is granted and the Claim is dismissed based upon Claimant’s failure to file and serve a note of issue as demanded.

July 17, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant’s motion to dismiss the Claim for failure to prosecute:

Papers Numbered

Notice of Motion, Affirmation in Support
& exhibits attached 1

Filed papers: Claim and Answer