Opinion
# 2012-040-003 Claim No. 115752
01-26-2012
WATSON v. THE STATE OF NEW YORK
Synopsis
Claim dismissed for failure to prosecute. Case information
UID: 2012-040-003 In the Matter of the Claim of Claimant(s): DAVID WATSON Claimant short name: WATSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115752 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Gregory S. Watts, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG Third-party defendant's attorney: Signature date: January 26, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By letter dated September 7, 2011, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be subject to dismissal, without further notice, pursuant to CPLR 3216.
The Court sets forth the history of this Claim as follows:
Claimant filed a Claim with the Clerk of the Court on August 27, 2008. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on October 6, 2008.
By Preliminary Conference Order executed by the undersigned on January 14, 2009, the date by which Claimant had to file the Note of Issue and Certificate of Readiness in this Claim was on or before June 15, 2009.
By letter dated October 21, 2010, the Court scheduled a status conference by telephone on December 14, 2010.
By facsimile communication received December 13, 2010, Claimant's counsel requested an adjournment of the Defendant 14, 2010 telephone conference.
By facsimile communication to counsel dated December 14, 2010, the Court rescheduled the telephone conference to January 5, 2011.
On January 5, 2011, Chambers attempted to conduct the telephone conference; however, Claimant's counsel was unavailable. During the afternoon on January 5, 2011, Claimant's counsel contacted the Court and he was advised by Chambers that the telephone conference would be rescheduled to a date in February 2011.
By Daily Report dated January 5, 2011, the Court scheduled a telephone conference with counsel on February 16, 2011.
On February 16, 2011, Chambers attempted to conduct the telephone conference; however, Claimant's counsel was unavailable.
By Daily Report dated February 17, 2011, the Court adjourned the conference sine die pending the outcome of the Court of Appeals' decision in re: Donald v State of New York (see 17 NY3d 389 [2011]).
By letter dated June 27, 2011, the Court scheduled a telephone conference on August 25, 2011.
On August 25, 2011, Claimant's counsel was unavailable yet again.
By letter of September 7, 2011, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of the date of receipt of that letter or the Claim would be dismissed, without further notice, pursuant to CPLR 3216.
The Court's letter was sent via certified mail, return receipt requested, and a copy was sent via first-class mail. On September 26, 2011, the Court received the certified mail return receipt card. Although the signatory's name is illegible, the return receipt is date stamped September 9, 2011. The letter sent via first-class mail has not been returned. The Court has received no response to date and the Note of Issue and Certificate of Readiness has not been filed;
CPLR 3216 provides the general authority to dismiss a Claim for failure to prosecute. In order to do so, all the statutory requirements for dismissal must be met: (1) issue must have been joined; (2) one year must have elapsed since the joinder of issue; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1997]). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2d Dept 1999]). When the demand is not received due to, for instance, the failure to keep the parties and the Court apprised of a change of address, then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]). If the letter is not returned to the Court by the U.S. Postal Service, it is presumed that it has been received (Allen v State of New York, Ct Cl, Claim No. 105397, Motion No. M-73731, dated August 29, 2007, Milano, J. [UID No. 2007-041-039]; see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]).
Here, all of the conditions have been met. It appears that Claimant (by his counsel) received the demand by certified mail, return receipt requested. Moreover, it was mailed to his counsel's last-known address and the letter sent by regular mail was not returned
In accordance with CPLR 205(a), the Court notes that the Claim was filed over three years ago. Claimant now has failed to file a Note of Issue and Certificate of Readiness as directed and has failed to respond to the Court's inquiries and directives in that regard. Thus, the Court determines that Claimant's conduct demonstrates a general pattern of delay in proceeding with his Claim. The Court further concludes that Claimant has neglected his Claim and lost interest in prosecuting it.
Based upon the foregoing, it is:
ORDERED that the Claim is dismissed based upon Claimant's failure to file and serve a note of issue as demanded.
January 26, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims