New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2009-038-560, Claim No. 113804, Motion No. M-76699


Synopsis


Defendant’s motion to dismiss for failure to prosecute pursuant to CPLR 3216 granted.

Case Information

UID:
2009-038-560
Claimant(s):
JAIME RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113804
Motion number(s):
M-76699
Cross-motion number(s):

Judge:
W. Brooks DeBow
Claimant’s attorney:
JAIME RODRIGUEZ, 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 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual formerly incarcerated at Franklin Correctional Facility, filed this claim on June 6, 2007, alleging various torts based on unspecified conduct of unidentified officials, apparently relating to inmate misbehavior and imposition of disciplinary sanctions. Defendant’s verified answer was served and filed in November 2007. By notice of motion dated May 18, 2009, defendant moves to dismiss the claim for failure to prosecute. 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). Here, as indicated above, issue was joined in November 2007, and this motion was made more than one year after that date. Claimant was released from incarceration in September 2008 (see Cagino Affirmation, Exhibit C). Defendant was advised by the Department of Correctional Services of two post-release addresses for claimant (see Cagino Affirmation, Exhibit D), and on January 22, 2009, defendant served claimant with a 90-day demand to file a note of issue at both addresses, making service by certified mail, return receipt requested (see Cagino Affirmation, Exhibit E). Thus, defendant has complied with the requirements of CPLR 3216 (b). The United States Postal Service receipt was signed by claimant on January 26, 2009 (see Cagino Affirmation, Exhibit F).[1] Claimant has not filed a note of issue, he has not submitted opposition to defendant’s motion (which was served upon him at both addresses to which the 90-day notice was sent), nor has he otherwise acted to resume prosecution of this claim. Accordingly, and pursuant to CPLR 3216(a), it is

ORDERED, that Motion No. M-76699 is GRANTED and Claim No. 113804 is DISMISSED.

July 21, 2009
Albany, New York

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


Papers considered
:


(1) Claim No. 113804, filed June 6, 2007;

(2) Verified Answer, filed November 9, 2007;

(3) Notice of Motion to Dismiss, dated May 18, 2009;

(4) Affirmation of Paul F. Cagino, AAG, dated May 18, 2009, with Exhibits A-G.


[1]. On the same date it served claimant by certified mail, return receipt requested, defendant also served a 90-day demand upon claimant at both addresses by ordinary first-class mail. As defendant received a signed receipt, the alternate service pursuant to CPLR 2103 is immaterial on this motion (compare Allen v State of New York, UID #2007-041-039, Claim No. 105397, Motion No. M-73731, Milano, J. [Aug. 29, 2007]).