Claim dismissed based upon Claimant's failure to resume prosecution.
|Claimant short name:||FARMER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Tyrone Farmer, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Anthony Rotondi, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 19, 2021|
|See also (multicaptioned case)|
By Order to Show Cause returnable September 22, 2021, the Court ordered Claimant to show cause why his Claim should not be dismissed for failure to resume prosecution.
Claimant's pro se Claim was filed in the Office of the Clerk of the Court on November13, 2018 and alleges that Claimant fell while disembarking from a New York State Department of Corrections and Community Supervision bus at Coxsackie Correctional Facility, resulting in injuries to his face and hands, as a result of Defendant's negligence. Issue was joined when the State served and filed its Verified Answer on December 18, 2018. By Order of Acting Presiding Judge Richard E. Sise, dated October 16, 2020, this Claim was reassigned from the prisoner pro se calendar to the Individual Assignment Calendar of the undersigned. By letter, dated October 29, 2020, the parties were advised that a Preliminary Conference would be held by telephone on December 17, 2020 at 11:00 a.m. The Court requested that Claimant provide it with his daytime telephone number upon receipt of that letter. The correspondence was sent to the address Claimant provided by correspondence dated October 18, 2020. Claimant provided the Court with his telephone number by letter dated November 2, 2020. However, when the Court telephoned on December 17, 2020, the call went directly to Claimant's voicemail, and he did not appear at the conference. Defendant appeared at the conference.
Thereafter, the Court sent Claimant correspondence, dated December 18, 2020, by first-class mail and certified mail, return receipt requested, rescheduling the conference for January 14, 2021 at 11:30 a.m. On the morning of the conference, when the Court telephoned Claimant, the call, again, went directly to voicemail, which was full, and the Court was not able to leave a message. Defendant appeared at the January 14, 2021 conference. On February 16, 2021, the letter sent by certified mail, return receipt requested, was returned to the Court with the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD." The letter sent by first-class mail was not returned. The Court has not received any communication from Claimant in response to its December 18, 2020 letter.
Claimant has not been in contact with the Court since November 2, 2020, and the Note of Issue and Certificate of Readiness has yet to be filed. On April 5, 2021, the Court sent Claimant a letter by certified mail, return receipt requested, and by first-class mail, at his address as stated above, that set forth the defaults that demonstrated a general pattern of delay in proceeding with the litigation and demanded that his failure to resume prosecution of the Claim and file the Note of Issue and Certificate of Readiness within 90 days of receiving that letter, would serve as the basis for a motion or action by the Court to dismiss the Claim for unreasonably neglecting to proceed, pursuant to CPLR 3216(b)(3). The letter sent by first-class mail was returned to the Court on May 24, 2021 with the notation "RETURN TO SENDER … ATTEMPTED - NOT KNOWN … UNABLE TO FORWARD." On the same date, the Court received the letter sent by certified mail, return receipt requested, with the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD."
On October 12, 2021, the Order to Show Cause as to why the Claim should not be dismissed for failure to resume prosecution of the Claim that the Court sent by certified mail, return receipt requested, to Claimant at his last-known address was returned to the Court. The envelope contained the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD." However, the copy of the Order to Show Cause sent by first-class mail was not returned.
Claimant has not responded to the Order to Show Cause, has not filed the Note of Issue and Certificate of Readiness, and has not demonstrated any reason for his neglect to prosecute the Claim, nor shown justifiable excuse for the delay in serving and filing the Note of Issue and Certificate of Readiness.
Accordingly, and in accordance with CPLR 3216(e), it is
ORDERED, that Claim number 132259 is DISMISSED for want of prosecution.
October 19, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause 1
Letters from Court to Claimant,
dated October 29, 2020, December 18, 2020,
and April 5, 2021 2
Filed Papers: Claim, Answer, Order of Transfer