By letter dated May 7, 2008, Claimant was directed to resume prosecution of
this Claim, which was filed with the Clerk of the Court on April 7, 2004, and to
serve and file a Note of Issue 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 May 13, 2004.
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 Cayuga Correctional Facility on May 9, 2008.
Thereafter, the original and the first-class mail copy were returned to the
Court. Each bore the handwritten notation “RTS” “no
[forwarding] address (released)”.
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]; Holman v State of New York, Ct Cl, Claim
No. 101699, Motion No. M-71090, dated May 10, 2006, Fitzpatrick, J. [UID No.
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 four years ago. Claimant’s
last contact with the Court was by letter, received by the Court on May 9, 2004.
The last action in connection with the Claim, prior to the instant action, was
an order by Judge Judith A. Hard, dated August 2, 2004, that sets forth
deadlines for various document demands and responses, and which required that
Claimant serve and file a Note of Issue and Certificate of Readiness on or
before December 15, 2004. 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.