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.
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