New York State Court of Claims

New York State Court of Claims

GEER v. THE STATE OF NEW YORK, #2009-015-154, Claim No. 113409


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

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:
Damon M. Geer, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
March 23, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


On the Court's own initiative the instant claim is dismissed pursuant to CPLR 3216 for failure to serve and file the note of issue within 90 days.

The claimant, acting pro se, filed the instant claim on March 5, 2007 alleging that he was wrongfully confined to prison for twenty days beyond his legal maximum release date. He was allegedly released on July 28, 2006 and alleges in the claim that "[a] notice of intention to file a claim was filed and received by the Attorney General's office on November 27, 2006 - no more than 30 days beyond the statutory 90 day time period" (claim, ¶ 5).

By Order dated June 4, 2007 the parties were directed to complete disclosure and file the note of issue on or before May 16, 2008. No note of issue having been filed, on August 12, 2008 the Court served claimant with a demand to resume prosecution of this action and serve and file the note of issue within 90 days following receipt of the demand. The 90-day demand was served by both certified mail and ordinary mail service at claimant's last known address in Brooklyn, New York. The certified mail was unclaimed and the ordinary mail envelope was returned as undeliverable, indicating the claimant likely does not reside at the address to which the 90-demand was sent. To date, the note of issue has not been filed nor has the claimant undertaken any other activity in relation to the prosecution of this action.

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 the 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]). Inasmuch as claimant was required to communicate changes in his post office address in writing to the Clerk within 10 days thereof, the fact that claimant may not have resided at the address to which the 90-day demand was sent is of no consequence (see 22 NYCRR § 206.6 [f]).

The conditions precedent to dismissal set forth in CPLR 3216 (b) having been met, the claim is dismissed pursuant to CPLR 3216 .

March 23, 2008
Saratoga Springs, New York

Judge of the Court of Claims