Opinion
# 2020-040-033 Claim No. 126959 Motion No. M-94704
09-01-2020
RAMON ROSARIO, #14R0750 v. THE STATE OF NEW YORK
Ramon Rosario, Pro Se LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Claim dismissed for pro se Claimant's failure to resume prosecution.
Case information
| UID: | 2020-040-033 |
| Claimant(s): | RAMON ROSARIO, #14R0750 |
| Claimant short name: | ROSARIO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126959 |
| Motion number(s): | M-94704 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Ramon Rosario, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 1, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show Cause (hereinafter, "OSC") returnable December 11, 2019, and, as discussed below, ultimately adjourned to July 22, 2020, 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 October 30, 2015 and alleges that, on April 14, 2014, Claimant was injured at Ulster Correctional Facility when he fell from the step ladder he was using to access his top bunk because of Defendant's negligence in allowing a locker to be placed by the bunk bed step ladder, and, thereby, obstruct the ladder. Issue was joined when the State served and filed its Verified Answer on December 7, 2015.
A Notice of Appearance was filed in the Office of the Clerk of the Court on December 21, 2015 by Edward F. Westfield, Esq. On April 5, 2016, the Court "So Ordered" a Preliminary Conference Order (hereinafter, "PCO") directing the parties to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness on or before October 29, 2016. A copy of the PCO was sent to Claimant's then-lawyer, Mr. Westfield, and Defense counsel, Douglas R. Kemp, Esq., Assistant Attorney General. Counsel entered into three separate stipulations, all of which were "So Ordered" by the Court extending the time to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness. The last stipulation extended the deadline to June 15, 2017.
On October 30, 2017, Mr. Westfield submitted an OSC to withdraw as counsel which the Court signed on November 17, 2017, making the Motion to Withdraw returnable on February 14, 2018.
By Decision and Order, dated April 26, 2018 (Rosario v State of New York, UID No. 2018-040-037 [Ct Cl, McCarthy, J., April 26, 2018]), the Court noted that Mr. Westfield asserted that: Claimant has failed to respond to several attempts to contact him (Westfield Affirmation, ¶ 1); on September 19, 2017, counsel called Claimant's cellular telephone to discuss both executing a stipulation of discontinuance, and another matter pending in the Rochester Court of Claims. When he did not receive a return call, he called again the next day and left another voice mail message, and also sent Claimant a text message, again, asking him to call. There were no replies to any of these communications. Counsel further states that, on September 25, 2017, he sent an e-mail to Claimant, stating his previous attempts to contact Claimant and requesting a return call. He received no communication in reply. A copy of that e-mail was attached to counsel's affirmation (Westfield Affirmation, ¶¶ 3, 4, and Ex. A attached).
On September 27, 2017, Mr. Westfield sent Claimant a letter to the home address he had provided, by certified mail, return receipt requested, asking him to call counsel. The United States Postal Service returned the letter as undeliverable and "unable to forward." Claimant did not provide any work address to counsel. On October 3, 2017, counsel again called Claimant's cellular telephone number and received a recorded message, "At the subscriber's request, this number does not accept incoming calls" (Westfield Affirmation, ¶¶ 5, 6).
The Court noted that Claimant did not raise any objection to Mr. Westfield's withdrawal as Claimant "failed to keep his counsel apprised of his whereabouts, [and] it appears [Claimant] is no longer interested in prosecuting this action" (id.). The Court granted the Motion, allowing Mr. Westfield to withdraw as Claimant's lawyer and directing Claimant to advise the Court by November 1, 2018 if he obtained new counsel, was proceeding pro se, or wished to withdraw the Claim (id.).
By letter dated January 22, 2019, the Court wrote to Claimant at 648 West 160th Street, New York, New York 10032, scheduling a status conference by telephone for March 5, 2019. Claimant was directed to provide the Court with his daytime telephone number to facilitate its initiation of the conference call. A copy of the letter was sent to Defense counsel. On February 6, 2019, the letter sent to Claimant was returned to the Court with the notation "RETURN TO SENDER … INSUFFICIENT ADDRESS … UNABLE TO FORWARD." Claimant did not contact the Court, nor did he appear for the conference.
On April 2, 2019, the Court sent Claimant a letter by certified mail, return receipt requested, and by first-class mail, to the above-mentioned address, that set forth the defaults that demonstrated his unreasonable neglect to proceed and demanded that he serve and file the Note of Issue and Certificate of Readiness within 90 days of receiving that letter, pursuant to CPLR 3216(b)(3). The letter sent to Claimant by first-class mail was returned to the Court on April 26, 2019, with the notation "RETURN TO SENDER … INSUFFICIENT ADDRESS … UNABLE TO FORWARD." The letter sent to Claimant by certified mail, return receipt requested was returned to the Court on April 29, 2019, with the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD."
The OSC, dated October 9, 2019, directed the Chief Clerk of the Court to serve the OSC upon Claimant by regular mail and certified mail, return receipt requested. The Court mailed the OSC to Claimant by regular mail only. The letter was returned to the Court on November 4, 2019. The envelope contained the notation "RETURN TO SENDER ... INSUFFICIENT ADDRESS … UNABLE TO FORWARD." However, as the Clerk of the Court did not serve the OSC upon Claimant as the Court directed in the OSC, the Court, on February 7, 2020, adjourned the return date of the OSC to March 25, 2020 to allow the Clerk of the Court to provide Claimant Notice of the Motion, by certified mail, return receipt requested, and first-class mail.
On February 10, 2020, the Court mailed a cover letter, a copy of the Order adjourning the Return Date of the OSC and the OSC to Claimant both by certified mail, return receipt requested, and by first-class mail. The documents were also sent to the Attorney General by first-class mail. The correspondence sent by certified mail was returned to the Court on February 28, 2020 with the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD." The envelope sent by first-class mail was not returned.
The OSC was adjourned without date by the Court on March 16, 2020 because of the coronavirus public health emergency. The letter was sent to the parties by first-class mail. The letter addressed to Claimant was returned to the Court on April 20, 2020 with a handwritten notation "IA," an apparent reference to insufficient address.
By Daily Report, dated May 20, 2020, the Court noted that it appeared that it had not received any papers from Claimant or Defendant. Therefore, the Court established a new Return Date of July 22, 2020 should Claimant have wished to Reply to the OSC. The Court further noted that, if the new Return Date was problematic for either side, they should contact the Court with a proposed new date. Neither Claimant nor Defendant responded to the Court's Daily Report. The May 20, 2020 Daily Report was mailed to Claimant and the Attorney General by first-class mail. The letter addressed to Claimant was returned to the Court on June 23, 2020 with the notation "RETURN TO SENDER … INSUFFICIENT ADDRESS … UNABLE TO FORWARD."
Claimant has not responded to the OSC, 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 126959 is DISMISSED for want of prosecution.
September 1, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court: Papers Numbered Order to Show Cause 1 Letter from Court to Claimant dated April 2, 2019 2 Filed Papers: Claim, Answer