New York State Court of Claims

New York State Court of Claims

DEL VALLE v. STATE OF NEW YORK, #2009-039-108, Claim No. 110885, Motion No. M-75670


Synopsis


Defendant’s motion for an order pursuant to CPLR 3216 to dismiss the claim based upon claimants’ alleged failure to prosecute the claim is granted. Defendant complied with the requirements of CPLR 3216 by serving upon claimants and filing a demand to resume prosecution and by permitting the 90-day period to expire before moving the Court for an order dismissing the claim. Moreover, there has a been a significant lack of activity in the claim since at least February 2007 when, by order to show cause, counsel sought to be relieved of his representation, and claimants did not oppose the motion.

Case Information

UID:
2009-039-108
Claimant(s):
ANGEL DEL VALLE, by his mother and natural guardian, CARMEN DEL VALLE
Claimant short name:
DEL VALLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110885
Motion number(s):
M-75670
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Carmen Del Valle, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Kimberly A. KinironsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Carmen Del Valle seeks damages on behalf of her son, Angel Del Valle, for injuries he allegedly sustained while a patient at Pilgrim State Psychiatric Hospital when he was assaulted by an employee of the facility. The claim was commenced during May 2005, and issue was joined. By Decision and Order dated March 12, 2008, the Court granted a request by claimants’ counsel to withdraw. By Notice of Motion dated October 6, 2008, defendant now moves the Court for an order dismissing the claim pursuant to CPLR 3216 based upon claimants’ alleged failure to prosecute the claim.

In support of its motion, defendant offers, among other things, copies of its demand to resume prosecution and accompanying affidavit of service, as well as a xeroxed copy of the signed certified mail receipt (see Exhibits D and E). These documents establish that on June 5, 2008, defendant served by certified mail, return receipt requested a demand to resume prosecution upon claimant Carmen Del Valle at the post office address provided in the verified claim. The demand informed claimants that they were required to “file and serve a Note of Issue within ninety (90) days after receipt of [the] demand pursuant to Article 32, Rule 3216 of the Civil Practice Law and Rules.” The demand further informed claimants that their “failure to file and serve a Note of Issue within ninety (90) days of [the] demand will result in the undersigned seeking to dismiss the claim.”

CPLR 3216 (a) provides that


“[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.”


It is well settled, however, that “[a]ny motion to dismiss the complaint for the plaintiffs’ general delay in prosecuting the action must be preceded by a written demand to file a note of issue pursuant to CPLR 3216 [citation omitted], and the defendant must then await the expiration of the 90-day period before moving to dismiss on this ground” (Weber v Kessler, 224 AD2d 520, 521 [1996]; see also Divjak v New York Hospital-Cornell Medical Center, 219 AD2d 695, 696 [1995]; Lyons v Butler, 134 AD2d 576 [1987]).

The Court finds that defendant has complied with the requirements of CPLR 3216 by serving upon claimants and filing a demand to resume prosecution and by permitting the 90-day period to expire before moving the Court for an order dismissing the claim. The Court further finds that there has been a significant lack of activity in the claim since at least February 2007 when, by order to show cause, counsel sought to be relieved of his representation (see Sloane v Kopp, 272 AD2d 795, 796 [2000], lv denied 95 NY2d 763 [2000]). Moreover, claimants did not oppose the motion and have therefore failed to establish a reasonable excuse for the dormancy of their claim (id.).

Accordingly, it is ordered that M-75670 is hereby granted and the claim is dismissed.


May 12, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated October 6, 2008; and
  2. Affirmation of Kimberly A. Kinirons, AAG, dated October 6, 2008 with exhibits.