New York State Court of Claims

New York State Court of Claims

TERRY v. STATE OF NEW YORK, #2009-040-078, Claim No. 107908


CPLR 3216 Claim dismissed for failure to prosecute.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
John A. Terry, Jr., Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


By letter dated June 4, 2009, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be subject to dismissal, without further notice, pursuant to CPLR 3216.

The Court sets forth the history of this Claim as follows:

Claimant filed his Claim with the Clerk of the Court on June 20, 2003. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on August 1, 2003.

By letter dated July 17, 2008, the Court advised Claimant that the trial of this Claim had been scheduled for November 14, 2008 at Clinton Correctional Facility, located in Dannemora, New York.

By letter dated August 3, 2008, Claimant notified the Clerk of the Court that he was going to be released from custody on August 15, 2008 and provided his address. The November 14, 2008 trial date then was adjourned.

By order filed with the Clerk of the Court on February 25, 2009, Court of Claims Presiding Judge Richard E. Sise reassigned this Claim to the Calendar of the undersigned.

By letter dated March 3, 2009, Chambers requested that Claimant advise if he was interested in pursuing his Claim. If he was, he was advised to inform the Court in writing and then a conference setting up a discovery schedule would be held.

By letter dated April 1, 2009 and received in Chambers on April 10, 2009, Claimant advised the Court that he did wish to pursue his Claim. Such letter had a new return address for Claimant. Claimant noted that he was aware that the Court would be in contact to schedule a conference.

By letter dated April 10, 2009, addressed to Claimant at his new address, the Court scheduled a Preliminary Conference by telephone for May 21, 2009 at 11:00 a.m. to discuss setting a discovery schedule. Claimant was directed to provide the Court with a telephone number where he could be reached. The Court also advised Claimant to notify the Clerk of the Court in writing of his new address. Claimant was advised that his failure to appear at the conference would be considered a calendar default.

Claimant failed to provide the Court his telephone number, did not otherwise contact the Court, and failed to appear at the May 21, 2009 Preliminary Conference.

By letter dated June 4, 2009, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue within 90 days of receive of that letter or the Claim would be dismissed, without further notice, pursuant to CPLR 3216. The letter was sent via certified mail, return receipt requested and a copy was sent via first-class mail. The Court received the certified mail return receipt card signed for by John A. Terry, Jr. (the name by which Claimant executed his Claim) on July 1, 2009. The receipt indicates that the letter was delivered at another address. The letter sent via first-class mail has not been returned. If the letter is not returned by the U.S. Postal Service, it is presumed that it has been received (Allen v State of New York, Ct Cl, Claim No. 105397, Motion No. M-73731, dated August 29, 2007, Milano J. [UID No. 2007-041-039]; see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3de Dept 2007]). The Court has received no response to date and the Note of Issue and Certificate of Readiness has not been filed.

CPLR 3216 provides the general authority to dismiss a Claim for failure to prosecute. In order to do so, all the statutory requirements for dismissal must be met: (1) issue must have been joined; (2) one year must have elapsed since the joinder of issue; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1977]). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2d Dept 1999]). Here, all of the conditions have been met.

In accordance with Chapter 156 of the Laws of 2008, which amends CPLR 205(a), the Court notes that the Claim was filed over six years ago. Claimant’s last action in connection with the Claim occurred when he filed a motion to compel discovery (see Terry v State of New York, Ct Cl, Claim No. 107908, Motion No. M-74928, June 20, 2008, McCarthy, J. [UID No. 2008-040-040]). Since then, he has failed to appear at a Court conference on May 21, 2009 and failed to respond to the Court’s request to resume prosecution of this matter and file a Note of Issue and Certificate of Readiness. Thus, the Court determines that Claimant’s conduct demonstrates a general pattern of delay in proceeding with his Claim. The Court further concludes that Claimant has neglected his Claim and lost interest in prosecuting it.

Based upon the foregoing, it is ORDERED that the Claim is dismissed based upon Claimant’s failure to file and serve a note of issue as demanded.

October 27, 2009
Albany, New York

Judge of the Court of Claims