Claim dismissed sua sponte for failure to prosecute.
|Claimant short name:||CAMACHO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franklyn Camacho, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 26, 2009|
|See also (multicaptioned case)|
On the Court's own initiative the instant claim is dismissed for failure to prosecute pursuant to CPLR 3216. The claim filed on May 23, 2005 states that the claimant, a pro se inmate, became ill on March 28, 2005 when he was allegedly exposed to polluted water at Wallkill Correctional Facility.
The claimant failed to appear for a preliminary conference on July 31, 2008. An Order issued following the conference required the claimant to file the note of issue on or before February 2, 2009. No note of issue was filed and the claimant was notified by letter dated March 6, 2009 that the instant claim would be called at a calendar call to be held on April 29, 2009. Claimant responded by letter dated April 2, 2009 indicating his intention to continue prosecution of the claim. Subsequently on May 1, 2009 the Court served the claimant, by certified mail, return receipt requested, with a demand to resume prosecution of this action and serve and file the note of issue within 90 days. The demand, served upon the claimant at the address previously provided to the Court (the same address contained on the return address portion of the envelope used to mail claimant's April 2, 2009 correspondence) was returned with the notations "return to sender", "unclaimed", "unable to forward".
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 ; Dicken v State of New York, 16 AD3d 760 ; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 , lv denied 100 NY2d 502 ; Nelson v State of New York, 10 Misc 3d 1061[A] [Ct Cl 2005]).
Inasmuch as claimant was required to communicate changes to 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.
October 26, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims