New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2008-041-047, Claim No. 108483, Motion No. M-75674


Synopsis


Claim is dismissed for failure to prosecute pursuant to CPLR 3216.

Case Information

UID:
2008-041-047
Claimant(s):
DENNIS DIAZ
Claimant short name:
DIAZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108483
Motion number(s):
M-75674
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
None
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim pursuant to CPLR 3216, asserting that claimant has unreasonably failed to serve and file a note of issue. Claimant has not opposed the motion. This medical malpractice claim arose while claimant was incarcerated at Wallkill Correctional Facility and was filed with the Clerk of the Court of Claims on November 3, 2003. The claim was served on the Attorney General on November 5, 2003 and defendant’s answer was served on December 12, 2003.

Claimant was released from incarceration on March 18, 2004 and provided a release address of 2090 Barnes Avenue, Apt. #6E, Bronx, NY 10462 to the Department of Correctional Services.

Claimant has not advised the Clerk of the Court of Claims of any change in his address as required by 22 NYCRR 206.6 (f).

On May 28, 2008, defendant served on claimant, by certified mail, return receipt requested, a demand that claimant serve and file a note of issue within ninety (90) days after receipt of the demand. The return receipt and envelope were returned by the U.S. Postal Service as unclaimed.

On May 28, 2008, defendant served on claimant, by regular mail addressed to claimant’s release address, a further copy of the CPLR 3216 demand that claimant serve and file a note of issue within ninety (90) days after receipt of the demand. The additional demand was not returned by the U.S. Postal Service and is presumed to have been received by claimant (see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]).

CPLR 3216 (a) provides, at relevant part, as follows:
“Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.”
Defendant has complied with the requirements of CPLR 3216 (b) by offering proof that more than one year has elapsed since the joinder of issue and by showing that it has:
“[S]erved a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed” (CPLR Rule 3216 [b] [3]).
The Court finds that defendant has complied with the notice requirements of CPLR 3216 (see Perez v the State of New York [Ct Cl, Claim No. 109279, Motion No. M-75094, dated July 17, 2008, McCarthy, J., UID #2008-040-047]).

The claim was filed and served more than five (5) years ago and claimant has had no further contact with the defendant, the Court or the Clerk of the Court of Claims. Claimant failed to advise the defendant, the Court or the Clerk of any change of address. Under these circumstances, the Court finds that claimant’s conduct demonstrates a general pattern of delay in proceeding with the litigation (CPLR 205 [a]).

The claim must be dismissed based upon claimant’s failure to file and serve a note of issue, as demanded.

The defendant’s motion is granted. The claim is dismissed.


November 14, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed September 10, 2008;
  2. Affirmation of Paul F. Cagino, dated September 8, 2008, and annexed exhibits.