Opinion
# 2014-048-141 Claim No. 120181 Motion No. M-84660
06-04-2014
JOHN ANDERSON v. THE STATE OF NEW YORK
JOHN ANDERSON, Pro Se No Appearance HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General
Synopsis
The Court granted Defendant's motion to dismiss the Claim for failure to prosecute.
Case information
| UID: | 2014-048-141 |
| Claimant(s): | JOHN ANDERSON |
| Claimant short name: | ANDERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120181 |
| Motion number(s): | M-84660 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | JOHN ANDERSON, Pro Se No Appearance |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 4, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant John Anderson commenced this action seeking damages for personal injuries commencing in March 2011 due to Defendant's alleged negligence and/or medical malpractice in failing to prescribe pain medication for Claimant while he was incarcerated at Oneida Correctional Facility under the supervision of the Department of Correctional Services (DOCS).
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, pt C, subpt A, § 4 eff. March 31, 2011). Inasmuch as the Claim makes allegations that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Defendant now moves the Court for an order dismissing the Claim pursuant to CPLR 3216 based upon Claimant's alleged failure to prosecute the Claim. Claimant does not oppose the motion.
CPLR 3216 authorizes the Court to dismiss a Claim for a claimant's failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a proper written demand to resume prosecution and serve and file a note of issue has been served upon the claimant by certified or registered mail (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]).
The record before the Court reveals that the Claim was filed on August 1, 2011, and issue was joined by Answer served and filed October 13, 2011. Paper discovery thereafter ensued (see Defendant's Discovery Demands and a Demand for a Verified Bill of Particulars, filed October 13, 2011 and Claimant's Response to Demand for a Bill of Particulars, filed November 23, 2011). Claimant was released from DOCS custody on May 1, 2012 (see Affirmation of G. Lawrence Dillon, Esq., ¶ 5 and Exhibit C). On August 16, 2012, Defendant's counsel served Claimant with a demand, pursuant to CPLR 3216 (b), to serve and file a Note of Issue and Statement of Readiness within 90 days (see Affirmation of G. Lawrence Dillon, Esq., Exhibit D). This demand was served by certified mail, return receipt requested to Claimant's last known address at that time - c/o G. Davis, Buffalo Metro Area Office, 460 Main Street, Buffalo, New York, 14202 (see Affirmation of G. Lawrence Dillon, Esq., ¶6, Exhibit D). In that demand, Claimant was advised that failure to comply would serve as a basis for the Court to dismiss the Claim for unreasonably neglecting to proceed. Defendant's counsel affirms that the Demand served on Claimant was not returned by the US Postal Service as undeliverable (see Affirmation of G. Lawrence Dillon, Esq., ¶ 6). Counsel further provides a copy of the returned receipt requested card, which bears a delivery signature date of "8/20" (Affirmation of G. Lawrence Dillon, Esq., Exhibit E). To date, the Note of Issue has not been filed.
On April 15, 2014, Claimant contacted the Chambers of Court of Claims Judge Glen T. Bruening via telephone and advised of his new telephone number and address (2096 Seneca Street, Buffalo, New York 14210). At that time, Claimant was advised to write to both the Attorney General's Office and the Clerk of the Court and advise of his new contact information. On May 14, 2014, Chambers contacted Claimant via telephone and left a message to confirm that Claimant would not be submitting any opposition to Defendant's motion. No further contact was received by the Court from Claimant.
Defendant contends that, inasmuch as Claimant was required to communicate to the Clerk of the Court any change in his post office address within ten days (see 22 NYCRR 206.6 [f]), the fact that Claimant may not have resided at the address where the 90-day demand was sent is of no consequence (see Affirmation of G. Lawrence Dillon, Esq., ¶ 7 ). Defendant's counsel affirms that the last time the Attorney General had contact with Claimant was correspondence received from him on September 22, 2011 (see Affirmation of G. Lawrence Dillon, Esq., ¶ 11 ).
The 90-day period to respond to a CPLR 3216 demand generally runs from receipt (see Vasquez v City of New York, 5 AD3d 672, 672 [2d Dept 2004]). In this matter, the 90-day demand was received on August 20, 2012, and Claimant's failure to file a Note of Issue and Certificate of Readiness or otherwise resume prosecution of his Claim within 90 days warrants dismissal pursuant to CPLR 3216 (see Dickan v State of New York, 16 AD3d 760 [3d Dept 2005]; CPLR 205 [a]). Furthermore, Claimant's failure to respond to both the 90-day demand and to Defendant's motion demonstrates not only a pattern of delay, but an abandonment of the Claim.
Accordingly, Defendant's Motion No. M-84660 is granted and the Claim is dismissed.
June 4, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed August 1, 2011;
Answer, filed October 13, 2011, with Defendant's Discovery Demands and Demand for a Verified Bill of Particulars;
Claimant's Response to Demand for a Bill of Particulars, filed November 23, 2011, Response to Medicare Demand, filed November 23, 2011;
Notice of Motion, filed January 30, 2014;
Affirmation of G. Lawrence Dillon, Esq., dated January 30, 2014, with Exhibits A-E;
Order, filed March 11, 2014.