New York State Court of Claims

New York State Court of Claims

PERRY v. THE STATE OF NEW YORK, #2009-015-124, Claim No. 112362, Motion No. M-75812


Defendant's motion to dismiss for failure to prosecute pursuant to CPLR 3216 was denied. Claimant's counsel proferred a reasonable excuse for the delay and a meritorious cause of action.

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:
Basch & Keegan, LLPBy: Derek J. Spada, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 23, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim for failure to timely file the note of issue pursuant to CPLR 3216. The claim filed by the claimant pro se on May 22, 2006 alleges causes of action for personal injuries sustained by the claimant on August 11, 2005 and December 5, 2005. The first injury allegedly occurred when a retractable electrical cord fell from the ceiling at Franklin Correctional Facility injuring the claimant’s head and shoulder. The second injury allegedly occurred when the claimant, now under the influence of medication from the first incident, sustained an injury to his finger while operating an electrically powered saw.

On July 27, 2006 the law firm of Basch & Keegan, LLP, filed a notice of appearance on behalf of the claimant and on July 31, 2006 an amended claim was filed.[1] The note of issue was due to be filed in this action on September 28, 2007 pursuant to an Order dated October 26, 2006. No note of issue having been filed, on January 17, 2008 the Court served upon claimant's counsel, by certified mail, return receipt requested, a demand that claimant resume prosecution of this action and serve and file the note of issue within 90 days following receipt of the demand. As the return receipt was not received by the Court, a second 90-day demand was served by certified mail, return receipt requested on April 14, 2008.

On April 30, 2008, prior to the expiration of the 90 days in which to serve and file the note of issue, claimant’s counsel moved by order to show cause to be relieved as counsel for the claimant.[2] The motion was denied by order of this Court filed on August 19, 2008. Thereafter, on August 28, 2008 claimant’s counsel served the note of issue, which was filed on September 2, 2008.

In opposition to the instant motion claimant’s counsel contends that the brief delay in filing the note of issue is excusable because his motion to withdraw as counsel for the claimant was pending when the 90 days expired. In addition, he supports the merits of the claim by reference to the amended claim, which was verified by the claimant (claimant’s Exhibit A), and a bill of particulars which was not verified (claimant’s Exhibit B).

As stated by the Court of Appeals in Baczkowski v Collins Constr. Co. (89 NY2d 499 [1997]):
“ CPLR 3216. . . is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period” (Id. at 503, citing CPLR 3216 [b])

Where the note of issue is not filed within the 90-day time period in which to do so, in order to defeat a motion to dismiss the claimant is required to proffer an excuse justifying the delay and proof that his or her causes of action have merit (Burchard v City of Elmira, 52 AD3d 881 [2008]; CPLR 3216 [e]). “ ‘[I]n evaluating the adequacy of the proffered excuse for [a] plaintiff's delay,’ the court must consider and weigh ‘the appropriate factors, including the history of the case, the extent of the delay, evidence of intent to abandon the case, undue prejudice to [the] defendant and the merits of the underlying claim’” (Id. at 881, quoting Schneider v Meltzer, 266 AD2d 801, 802 [1999]). Where the delay is not extensive and does not unduly prejudice defendants or signify claimant’s intent to abandon the action or engage in dilatory tactics, denial of a motion to dismiss is a provident exercise of discretion (Mrva v Yavorski, 17 AD3d 918, 919 [2005]).

Here, claimant’s counsel’s delay in filing the note of issue was justified, in large part, by his pending motion to withdraw as counsel for the claimant. In addition, there is no evidence of an intent to abandon the action or engage in dilatory tactics and the defendant has not claimed prejudice as the result of the delay. In these circumstances the excuse advanced for claimant’s counsel’s delay in serving and filing the note of issue is justifiable.

With regard to the required showing of merit, it is well settled that a claim verified by the claimant on the basis of his personal knowledge and containing sufficient factual allegations satisfies the requirement of an affidavit of merit (Salch v Paratore, 60 NY2d 851 [1983]; Alaimo v Government Empls. Ins. Co., 304 AD2d 889 [2003]). Here the Court finds that the claim sufficiently satisfies the required showing of merit (see claimant’s Exhibit A).

Based on the foregoing, defendant’s motion to dismiss the action pursuant to CPLR 3216 is denied.

January 23, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 7, 2008;
  2. Affirmation of Paul F. Cagino dated November 7, 2008 with exhibits;
  3. Affirmation of Derek J. Spada dated November 24, 2008 with exhibits.

[1]. The amended claim alleges that a notice of intention to file a claim was served on the Attorney General on September 5, 2005 and a second notice of intention to file a claim was “filed” on January 19, 2006.
[2]. A prior order to show cause to be relieved as counsel was submitted on or about November 6, 2007. However, this motion was never filed with the clerk and therefore not submitted for resolution.