Opinion
# 2016-018-720 Claim No. 121722 Motion No. M-88231
05-12-2016
KORAN BROOKS v. STATE OF NEW YORK
No Appearance ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim is granted (Court of Claims Act § 19 (3) and CPLR 3216).
Case information
| UID: | 2016-018-720 |
| Claimant(s): | KORAN BROOKS |
| Claimant short name: | BROOKS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121722 |
| Motion number(s): | M-88231 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion seeking an order dismissing the claim for failure to prosecute pursuant to CPLR 3216. Claimant has not responded to this motion.
On September 10, 2012, Claimant filed a claim with the Clerk of the Court seeking damages for wrongful confinement and malicious prosecution. Defendant affirms that the claim was served upon the office of the Attorney General on September 12, 2012, by regular mail. Issue was joined on January 23, 2013, when Defendant interposed its verified answer. Defendant brought a motion to dismiss pursuant to CPLR 3211 (a) (7) and (8) which was partially granted by Decision and Order dated August 28, 2013, dismissing all causes of action other than Claimant's excessive wrongful confinement claim. Defendant served a demand for a bill of particulars and discovery. Claimant provided a verified bill of particulars on February 27, 2013, and responded to Defendant's discovery demands on February 19, 2013, and the Medicare demand on April 22, 2013. No further action or communication from Claimant has been taken or received.
Motion No. M-83688
Brooks v State of New York, UID No. 2013-018-434 [Ct Cl, Fitzpatrick, J., Aug. 28, 2013].
Claimant was released from the custody of the New York State Department of Corrections and Community Services on November 20, 2014. Claimant has not advised the Clerk of the Court of his change of address.
On November 12, 2015, a letter demanding that Claimant file a note of issue and resume prosecution of his claim was sent to Claimant by certified mail, return receipt requested, and regular, first class, mail. Defendant asserts that the demand was sent to Claimant, in care of Parole Officer M. Trubridge, Interstate Bureau, 845 Central Avenue, Albany, New York 12206. The demand letter was not returned to the Defendant's office as undeliverable. A copy of the return receipt is attached to Defendant's submissions as part of Exhibit D.
On March 10, 2016, Defendant filed and served this motion upon Claimant at the same address to which the demand was sent. Claimant has not responded to this motion nor has he filed a note of issue with the Court.
Court of Claims Act section 19 (3) provides that this Court may, in its discretion, dismiss a claim for failure to prosecute. CPLR 3216 provides that where a party unreasonably neglects to prosecute a claim, the Court, on its own initiative or upon motion, may dismiss a party's pleading (CPLR 3216 [a]). In order to dismiss a claim pursuant to CPLR 3216, 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 or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later; and (3) the court or party seeking such relief shall have served a written demand by certified or registered mail requiring the alleged neglectful party to resume prosecution of the action and to file and serve a note of issue within 90 days after receipt of the demand, and providing that the failure to comply with the demand will serve as a basis for a motion to dismiss for unreasonably neglecting to proceed (CPLR 3216 [b] [3]). Service is complete and the 90 days begins to run when the demand is received (see Indemnity Ins. Co., v Lamendola , 261 AD2d 580 [2d Dept 1999]). Where these conditions have been met, the failure to file a note of issue within 90 days warrants a court dismissing an action unless the defaulting party presents a "justifiable excuse for the delay and a good and meritorious cause of action." (CPLR 3216 [e]; see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]).
Where the demand is not received, however, because of the failure to keep the parties and the Court informed of a change in address in accordance, the lack of receipt does not preclude dismissal of the claim (Court of Claims Act § 19 [3]; Dicken v State of New York, 16 AD3d 760 [3d Dept 2005]; Ellis v Urs, 121 AD2d 361 [2d Dept 1988]; Geer v State of New York, UID No. 2009-015-154 [Ct Cl, Collins, J., Mar. 23, 2008]). The Uniform Rules for the Court of Claims [22 NYCRR] section 206.6 (f) requires that any changes in the post office address of a pro se claimant must be communicated in writing to the Clerk of the Court within ten days. Claimant did not comply with this rule.
Here, there has been a three-year delay since Claimant took any action on this claim, Claimant did not keep the Court apprised of his current address, as required by Court Rules, upon his release from the custody of the Department of Corrections and Community Supervision almost one and one-half years ago, and the Defendant has complied with the requirements of CPLR 3216.
Accordingly, under these circumstances, Defendant's motion is GRANTED and the claim is DISMISSED (Court of Claims Act § 19 (3) and CPLR 3216).
May 12, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in support with exhibits attached thereto.