|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||DOCS, THE DEPARTMENT OF CORRECTIONS|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Kevin Smith, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 15, 2010|
|See also (multicaptioned case)|
Defendant brings a motion to dismiss Claim No. 110475 on the basis that claimant has neglected to proceed with his claim and has failed to file a Note of Issue pursuant to CPLR
§ 3216(b)(3). Claimant has not submitted any papers in opposition to the motion. For the reasons set forth herein, the Court grants defendant's motion and dismisses Claim No. 110475.
The underlying claim alleges that as a result of defendant's negligence, claimant was assaulted by another inmate on March 16, 2004, while incarcerated at Great Meadow Correctional Facility.
Defendant alleges, and provides documentary support, that it was served with a Notice of Intention to file a claim on May 12, 2004, that a claim that was filed with the Clerk of the Court and served upon defendant on February 7, 2005, and that issue was joined on March 14, 2005, by defendant's filing and service of a verified answer on claimant. Defendant further alleges that in March 2005, it served claimant with a Demand for a Bill of Particulars, to which it never received a response, and that in June 2005, it responded to a Demand for a Bill of Particulars that claimant had served in April 2005. Defendant also alleges, and provides proof of the same, that on January 28, 2009, it served claimant with a Demand to File a Note of Issue, by certified mail, return receipt requested, and first class mail, to his last known residential address as provided to the "Department of Corrections", but that both documents were returned to defendant due to the fact that they were unable to deliver the documents.
In support of its motion to dismiss, defendant annexes a copy of correspondence from claimant, dated August 3, 2005, indicating that claimant was no longer in the custody of the New York State Department of Correctional Services and was instead incarcerated at the Cayuga County Jail. Defendant alleges, however, that claimant was released from Cayuga County Jail in 2006, and has not been re-incarcerated or returned to the custody of the New York State Department of Correctional Services. Defendant argues that because claimant has failed and neglected to serve a Note of Issue upon defendant, and further, because he has not contacted the Office of the Attorney General in any manner whatsoever since August 7, 2005, that his claim should be dismissed.
Where a party unreasonably fails to proceed generally in an action or unreasonably fails to serve and file a note of issue, the Court may dismiss that party's pleading if: (1) issue has been joined; (2) one year has elapsed since the joinder of the issue; and (3) the court or party seeking the dismissal has served a written demand by registered or certified mail requiring the party against whom such relief has been sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed (CPLR 3216).
In the present case, defendant has satisfactorily shown that each of the aforementioned conditions precedent has been met. Specifically, issue was joined on March 14, 2005; more than one year has elapsed since the joinder of issue; and defendant served claimant with the requisite 90-day demand in its Demand to File a Note of Issue by certified mail, return receipt requested (see Monjeau Affirmation, Exhibit D). Although it appears that claimant did not receive the Demand to File a Note of Issue because all correspondence mailed to him was returned, the demand was served upon claimant, who is appearing pro se, at his last known residential address. Notably, correspondence sent from the Clerk of the Court to claimant on January 13, 2010, at the Cayuga Correctional Facility, the last known address this Court has on record for claimant, has been returned to the Court as undeliverable, as well.
Based upon claimant's failure to comply with 22 NYCRR § 206.6[f]), which provides that changes in the post office address of any attorney or pro se claimant shall be communicated in writing to the Clerk of the Court within ten days thereof, and his failure to file a Note of Issue or to otherwise proceed with his claim, the Court grants defendant's motion to dismiss (M-77596) and dismisses Claim No. 110475.
March 15, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affirmation of Thomas R. Monjeau, AAG, dated December 11, 2009, with Exhibits A-E;
2. Opposition papers: None.
Papers Considered: Claim, filed February 7, 2005; Order of Hon. Richard E. Sise, Presiding Judge, filed on February 16, 2005; and Order of Transfer of Hon. Richard E. Sise, Presiding Judge, filed on January 13, 2010.