New York State Court of Claims

New York State Court of Claims

DUNCAN v. THE STATE OF NEW YORK, #2009-015-152, Claim No. 114182


Synopsis


Court dismissed claim, sua sponte, for failure to prosecute pursuant to CPLR 3216.

Case Information

UID:
2009-015-152
Claimant(s):
EUGENE DUNCAN
Claimant short name:
DUNCAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114182
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Zinker & Herzberg, LLPBy: Jeffrey Herzberg, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On the Court's own initiative the instant claim is dismissed for failure to prosecute pursuant to CPLR 3216.


The claim filed on September 4, 2007 alleges an improper and unlawful restraint was caused to be placed on the claimant's bank account by the New York State Department of Taxation and Finance. Issue was joined by service of the defendant's answer on October 9, 2007. By Order dated December 14, 2007 the parties were directed to complete disclosure and serve and file the note of issue on or before May 30, 2008. No note of issue having been filed, on August 4, 2008 the Court served counsel for the claimant with a demand to resume prosecution of this action and serve and file the note of issue within 90 days after receipt of the demand. The 90-day demand was served by certified mail, return receipt requested, and was received on August 6, 2008 as evidenced by the signature appearing on the return receipt.

The claimant's failure to serve and file the note of issue within 90 days as demanded or otherwise move to either vacate the demand or extend his time to file the note of issue requires that the claim be dismissed for failure to prosecute (CPLR 3216; Court of Claims Act § 19 [3]; Dicken v State of New York, 16 AD3d 760 [2005]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2002], lv denied 100 NY2d 502 [2003]; Nelson v State of New York,

10 Misc 3d 1061[A] [Ct Cl 2005]). The conditions precedent to dismissal set forth in CPLR 3216 (b) having been met, the claim is dismissed pursuant to CPLR 3216 .


March 23, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims