|Claimant(s):||JULTON REALTY, LCC and MILTON ABELES, INC.|
|Claimant short name:||JULTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Julton Realty, LLC and
Milton Abeles, Inc.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This claim arises for expenses of relocation due to the appropriation of property owned by Julton Realty, LLC and Milton Abeles, Inc. (hereafter "claimants").
Previously, this Court granted an order to show cause of claimants' prior counsel to be relieved (M-75200 filed October 9, 2008). Claimants were granted 90 days to find new counsel. Claimants have not appeared by counsel. Defendant moves this Court for an order dismissing the claim pursuant to CPLR 3216(1) .
CPLR 3216 provides that a claim may be dismissed for lack of prosecution either on the court's own motion or the motion of a party. Before dismissing the case, the following conditions, pursuant to CPLR 3216(b), must be met:
(1) Issue must have been joined in the action;
(2) One year must have elapsed since the joinder of issue;
(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is 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.
Issue was joined in this matter on or about May 24, 2007, when defendant filed its answer. Thus, the first two conditions of CPLR 3216 have been met. Defendant has not served claimants with a 90 day notice demanding claimants to file a note of issue. While the Court's prior decision allowed for this motion, it did not satisfy the requirements of CPLR 3216. Defendant was obligated to fulfill the requirements of the statute.
Claimants have submitted no opposition to this motion.
Based upon the foregoing, defendant's motion to dismiss the claim is denied.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on defendant's motion: Notice of Motion dated December 3, 2009 and filed December 7, 2009; Affirmation of J. Gardner Ryan, Esq. with Exhibits dated December 3, 2009 and filed December 7, 2009.