|Claimant short name:||GRANGER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
|Defendant's attorney:||Honorable Letitia A. James, Attorney General
By: Joseph D. Callery, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2019|
|See also (multicaptioned case)|
On the Court's own motion, the claim is dismissed for failure to prosecute pursuant to CPLR 3216.
Claimant, by his attorney, Franzblau Dratch, P.C., filed a claim on August 11, 2016 alleging the Department of Corrections and Community Supervision (DOCCS) failed to provide claimant, an inmate in its custody, with timely medical care. By Order dated November 10, 2016, claimant was required to file and serve a Note of Issue and Certificate of Readiness for Trial on or before November 10, 2017. Claimant failed to serve and file the Note of Issue by the required date, nor did he request an extension of time to do so. Accordingly, on January 4, 2018, the Court served claimant's counsel with a demand that it resume prosecution of the action and file and serve a Note of Issue placing the action upon the calendar for trial within 90 days after receipt of the demand. The demand, which was sent by certified mail, return receipt requested, was received by claimant's counsel on January 9, 2018. Claimant thereafter filed and served a Note of Issue and Certificate of Readiness for Trial on March 16, 2018. However, contrary to the representations made by claimant's counsel in the Certificate of Readiness, discovery was far from complete. Claimant had not responded to defendant's demands for discovery, including a bill of particulars, and had neither submitted to an examination before trial nor an independent medical examination as requested. As a result, defendant made a motion to strike the Note of Issue, which was granted by Decision and Order dated August 7, 2018. In light of the claimant's failure to properly comply with the Court's previously served demand to resume prosecution of the action and file and serve a Note of Issue, the Court directed claimant's counsel to show cause, on September 19, 2018, why this claim should not be dismissed for failure to prosecute pursuant to CPLR 3216 and specifically permitted the submission of papers either in support of or in opposition to dismissal. By letter dated September 13, 2018, claimant's counsel notified the Court that he was unable to appear at the conference scheduled for September 19, 2018(1) and by Order dated September 14, 2018, the matter was adjourned to October 1, 2018. On September 28, 2018 the Court held a telephone conference at which time claimant agreed to complete discovery and serve file and serve the Note of Issue and Certificate of Readiness for Trial within 60 days. Despite the expiration of more than 90 days since the conference, claimant has failed to file and serve a Note of Issue and Certificate of Readiness for Trial. Nor has claimant's counsel requested an extension of time or otherwise moved to vacate the Court's previously served 90-day demand.
CPLR 3216 permits dismissal of a claim for failure to prosecute where one year has elapsed since issue was joined (or more than six months since the issuance of the preliminary conference order, whichever is later) and a written demand to resume prosecution of the action and file and serve a Note of Issue within 90 days after receipt of the demand has been served by registered or certified mail. The foregoing pre-requisites to dismissal under CPLR 3216 have been met. Accordingly, claimant's failure to serve and file the Note of Issue as demanded or otherwise move to either vacate the demand or extend his time to file the Note of Issue requires that the claim be dismissed for failure to prosecute (CPLR 3216; Court of Claims Act § 19 ; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504 ; Austin v Gould, 159 AD3d 422 [1st Dept 2018]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2d Dept 2002], lv denied 100 NY2d 502 ; cf. Novastar Mtge., Inc. v Melius, 145 AD3d 1419 [3d Dept 2016]; Hawe v Delmar, 148 AD3d 1788 [4th Dept 2017]).
Based on the foregoing, the claim is dismissed.
January 8, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. No papers were submitted either in support of dismissal pursuant to CPLR 3216 or in opposition thereto.