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
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,
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 ). 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.
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
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.