New York State Court of Claims

New York State Court of Claims

PIERCE v. STATE OF NEW YORK, #2008-040-063, Claim No. 113202


Synopsis


CPLR 3216 – Claim dismissed for failure to prosecute.

Case Information

UID:
2008-040-063
Claimant(s):
WENDY L. PIERCE
Claimant short name:
PIERCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113202
Motion number(s):

Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
John R. Polster, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Saul Aronson, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 6, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By letter dated May 22, 2008, Claimant was directed to resume prosecution of this Claim 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.

The Court sets forth the history of this Claim as follows:

Claimant filed a Claim with the Clerk of the Court on January 12, 2007. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on February 13, 2007;

Pursuant to the Court’s Preliminary Conference Order, dated May 7, 2007, the Note of Issue and Certificate of Readiness in this Claim was to have been filed on or before January 1, 2008. No such filing was made. These Chambers left a telephone voice mail message in relation thereto at Claimant’s attorney’s office on February 14, 2008.

Having had no response to that telephone inquiry, these Chambers scheduled a telephone conference for March 19, 2008, later rescheduled to April 2, 2008, at which time Claimant’s attorney failed to appear and failed to respond to a voice mail message or otherwise contact Chambers in that regard;

By letter dated May 22, 2008, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue within 90 days of receipt of that letter or the Claim would be dismissed, without further notice, pursuant to CPLR 3216. The letter was sent via certified mail, return receipt requested and a copy was sent via first-class mail. The Court received the certified mail return receipt card signed for by one“Patricia Berrion” or “Patricia Berrios” as an Agent of Claimant’s attorney on May 27, 2008. The letter sent via first-class mail has not been returned. If the letter is not returned by the U.S. Postal Service, it is presumed that it has been received (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]; see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]). The Court has received no response to date and the Note of Issue and Certificate of Readiness has not been filed.

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]). Here, all of the conditions have been met.

In accordance with Chapter 156 of the Laws of 2008, which amends CPLR 205(a), the Court notes that the Claim was filed a year and nine months ago. Claimant’s last action in connection with the Claim occurred on October 5, 2007 when she filed her Verified Bill of Particulars. Since then, her counsel failed to appear at a Court conference on April 2, 2008 and failed to respond to the Court’s request to resume prosecution of this matter and file a Note of Issue and Certificate of Readiness. Thus, the Court determines that Claimant’s conduct demonstrates a general pattern of delay in proceeding with her Claim. The Court further concludes that Claimant has neglected her 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.


October 6, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims