Opinion
# 2014-048-535 Claim No. 112478
06-04-2014
THOMAS SHELTON v. THE STATE OF NEW YORK
THOMAS SHELTON, 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 dismissed the Claim for failure to prosecute pursuant to CPLR 3216.
Case information
| UID: | 2014-048-535 |
| Claimant(s): | THOMAS SHELTON |
| Claimant short name: | SHELTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 112478 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | THOMAS SHELTON, 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, Thomas Shelton, commenced this action seeking damages for personal injuries sustained on and after April 9, 2005 when he fell from a shower chair while an inmate at Marcy Correctional Facility located in Oneida County, under the supervision of the Department of Correctional Services (DOCS). Claimant alleges that Defendant failed to provide him with adequate and timely medical treatment, and improperly and abruptly discontinued his prescribed medication. By Decision and Order dated September 18, 2013, this Court denied Defendant's motion to dismiss the Claim for failure to prosecute, finding that it was unable to conclude that Claimant's conduct evidenced a general pattern of delay (see Shelton v State of New York, Claim No. 112478, Motion No. M-82803, Bruening, J. [Sept. 18, 2013]). In that Decision and Order, however, Claimant was directed to resume prosecution of this Claim pursuant to CPLR 3216 (b) and to serve and file a Note of Issue within 90 days. Claimant was also advised that failure to comply would serve as a basis for the Court to dismiss the Claim for unreasonably neglecting to proceed. On October 24, 2014, the Court's Decision and Order was mailed via certified mail, return receipt requested, to Claimant at his last known address on file with the Clerk of the Court. On December 2, 2013, the envelope sent by certified mail, return receipt request was returned to the Court with the notation "Unclaimed."
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 relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
22 NYCRR 206.6 (f) provides that "[c]hanges in the post office address or telephone number of any attorney or pro se claimant shall be communicated in writing to the clerk within ten days thereof."
Recognizing that Clamant likely has not received the Court's demand, a Note of Issue has not been filed. CPLR 3216 authorizes the Court, on its own initiative, to dismiss a Claim for failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a written demand has been served upon the party by certified or registered mail (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). The 90-day period to respond to such a demand generally runs from receipt (see Vasquez v City of New York, 5 AD3d 672, 672 [2d Dept 2004]). However, when a demand is returned based on a claimant's failure to notify the Court of a change of address, then service is deemed complete upon mailing to the claimant's last known address (see Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]; see also CPLR 2103 [b] [2]; 22 NYCRR 206.6 [f]). Claimant filed his Claim on June 28, 2006. Issue was joined by answer served and filed July 12, 2006. Claimant's last communication to the Court is dated January 22, 2013, in which he provided the Clerk of the Court of Claims with a new address at 940 Garlenda Avenue, Palm Bay, Florida 32908. Claimant failed to respond to Defendant's prior motion to dismiss for failure to prosecute, which was served at his Garlenda Avenue address. Claimant was also served at his most recent address with the Court's demand pursuant to CPLR 3216. Based on the foregoing, the Court concludes that the statutory preconditions to dismissal have been met (see Baczkowski v Collins Constr. Co., 89 NY2d at 503). Claimant's failure to either serve and file the Note of Issue within 90-days of the Court's mailing of the demand or move to either vacate the demand or extend his time to file the Note of Issue requires that the Claim be dismissed (see Vasquez v State of New York, 12 AD3d 917, 918 [3d Dept 2004]). Furthermore, Claimant's failure to either claim the certified mailing, to notify the Clerk of his current address, or to otherwise communicate with the Court demonstrates that Claimant has abandoned his Claim or has demonstrated a general pattern of delay in proceeding with this Claim (see CPLR 205 [a]). The Claim should also be dismissed pursuant to Court of Claims Act § 19 (3) and 22 NYCRR 206.10 (g). Accordingly, it is hereby
ORDERED that the Claim is dismissed based upon Claimant's failure to file and serve a Note of Issue as demanded, and upon Clamant's failure to communicate with the Court.
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 June 28, 2006;
Answer, filed July 12, 2006, with attached Demand for a Verified Bill of Particulars and Discovery Demands;
Shelton v State of New York, Claim No. 112478, Motion No. M-82803, Bruening, J. (Sept. 18, 2013) and papers considered;
Correspondence from the Court, dated October 24, 2013, with one return envelope, received December 2, 2013, bearing certified mail receipt 7004 1350 0003 8348 7430, and return receipt.