New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2009-038-557, Claim No. 113376, Motion No. M-76511


Synopsis


Defendant’s motion to dismiss for failure to prosecute pursuant to CPLR 3216 granted. All of the requirements of CPLR 3216 met, and claimant has not filed a note of issue or opposed defendant’s motion

Case Information

UID:
2009-038-557
Claimant(s):
KEVIN SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113376
Motion number(s):
M-76511
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
KEVIN SMITH, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an individual formerly incarcerated in State correctional facilities, filed this claim on February 26, 2007 alleging that defendant is liable for injuries he suffered on March 2, 2005 when he tripped and fell on a broken sidewalk at Franklin Correctional Facility. Defendant served its verified answer on March 1, 2007.[1] Claimant was apparently released from the custody of the Department of Correctional Services (DOCS) on January 3, 2008 (see Cagino Affirmation, Exhibit C). Defendant served claimant with a 90-day demand to file a note of issue by certified mail, return receipt requested on February 1, 2008, to the post-release address that had been provided by claimant (see Cagino Affirmation, Exhibit D). Another 90-day demand was served by first class mail on March 6, 2008 (Cagino Affirmation, Exhibit E). Claimant has not filed the note of issue, and defendant now moves to dismiss the claim for failure to prosecute the claim. Claimant’s two requests for an extension of the 90-day period (see Cagino Affirmation, Exhibits F, G), the first of which was granted, make it abundantly clear that he received the demand. The motion was served upon him at the same address to which the 90-day demands had been sent, as well as to a subsequent address with which claimant provided defendant. Claimant has not opposed the motion. As conditions precedent to a motion to dismiss for want of prosecution, CPLR 3216 (b) requires that issue must have been joined, that one year must have elapsed since joinder of issue, and that a written demand to resume prosecution of the action and file a note of issue within ninety days be served in the manner required by CPLR 3216 (b)(3). As noted above, issue was joined on March 1, 2007, service of the 90-day demand was made upon claimant in the manner prescribed by CPLR 3216 (b)(3), and this motion was brought more than one year after joinder of issue. Thus, all of the prerequisites set forth in CPLR 3216 have been met, and claimant has not filed a note of issue. Accordingly, it is

ORDERED, that Motion No. M-76511 is GRANTED, and Claim No. 113376 is hereby DISMISSED.

July 14, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 113376, filed February 26, 2007;

(2) Verified Answer, filed March 2, 2007

(3) Notice of Motion to Dismiss, dated April 6, 2009;

(4) Affirmation of Paul F. Cagino, AAG, dated April 6, 2009, with Exhibits A-G.


[1]. The Court notes the oddity that the affidavit of service, though sworn to on February 28, 2007, states that service of the answer was made the following day, on March 1, 2007.