New York State Court of Claims

New York State Court of Claims

COOKE v. THE STATE OF NEW YORK, #2008-040-050, Claim No. 112238


Claim dismissed. Failure to prosecute.

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:
Thomas Cooke, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


By letter dated May 6, 2008, Claimant was directed to resume prosecution of this Claim, which was filed with the Clerk of the Court on April 20, 2006, and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be subject to dismissal, without further notice, pursuant to CPLR 3216. Issue was joined when Defendant filed its Verified Answer with the Clerk of the Court on May 22, 2006.

The Court’s letter was sent via certified mail, return receipt requested, and a copy was sent via first-class mail. The Court’s letter was signed for by a representative of Elmira Correctional Facility on May 9, 2008. Thereafter, the original was returned to the Court with the handwritten notation “RTS” “Paroled in 06.” The first-class mail copy also was returned and bore the handwritten notation “released on parole.”

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]; Holman v State of New York, Ct Cl, Claim No. 101699, Motion No. M-71090, dated May 10, 2006, Fitzpatrick, J. [UID No. 2006-018-517]).

Here, all of the conditions have been met. Although Claimant never actually received the demand by certified mail, return receipt requested, or by regular mail, they were sent to his last-known address.

In accordance with Chapter 156 of the Laws of 2008, which amends CPLR 205(a), the Court notes that the Claim was filed over two years ago. The last action in connection with the Claim, prior to the instant action, was a decision and order by Presiding Judge Richard E. Sise, dated December 21, 2006, that denied Claimant’s request that his Claim be consolidated with that of another claimant. Claimant has not contacted the Court since then. 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 any attorney or 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, it is ORDERED that the Claim is dismissed based upon Claimant’s failure to file and serve a note of issue as demanded.

September 10, 2008
Albany, New York

Judge of the Court of Claims