Opinion
# 2016-038-548 Claim No. 114595 Motion No. M-88341
07-28-2016
KEITH TERRELL BUTLER 05 A 1392 v. THE STATE OF NEW YORK
KEITH TERRELL BUTLER, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss for failure to prosecute pursuant to CPLR 3216 denied, as demand omitted a phrase that is required by statute to be included in the demand.
Case information
| UID: | 2016-038-548 |
| Claimant(s): | KEITH TERRELL BUTLER 05 A 1392 |
| Claimant short name: | BUTLER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114595 |
| Motion number(s): | M-88341 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | KEITH TERRELL BUTLER, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in State correctional facilities, filed this claim on December 12, 2007, in which he alleges that he was assaulted by corrections staff at Upstate Correctional Facility. An amended claim was filed on July 3, 2008. Verified answers to the claim and amended claim were served and filed by defendant in January and August 2008, respectively. Defendant's demand for a bill of particulars and claimant's bill of particulars were filed and served in January 2008, which was the last date of substantive action on this claim. On at least three occasions while incarcerated, claimant informed the Clerk of the Court of Claims of recent transfers to a new correctional facility and of his new address (see DeCataldo Correspondence, May 15, 2008 and Apr. 26, 2010; Butler Correspondence, Aug. 26, 2010). Defendant asserts that claimant was released from incarceration to parole supervision on October 21, 2014 (see Cagino Affirmation, ¶ 8), but he did not inform the Clerk of the Court of a new address. At the present time, the Clerk's records indicate that claimant is no longer incarcerated but that a current address for claimant is not available. Defendant obtained claimant's last known address from his parole officer (see id.; Exhibit E [Martinez Affidavit]). Defendant now moves to dismiss the claim for failure to prosecute.
Defendant served claimant with a 90-day demand to file a note of issue by regular mail and by certified mail, return receipt requested (CMRRR) on March 19, 2015, to the post-release address that had been provided by claimant's parole officer (see id., ¶ 10; Exhibit F). The demand that was sent by CMRRR was returned to defendant, marked "unclaimed" on April 13, 2015 (see id., ¶ 11; Exhibit G); defendant does not state whether the demand that was sent by regular mail was also returned. Claimant has not filed the note of issue, nor has he otherwise contacted defendant or the Court, and defendant now moves to dismiss the claim for failure to prosecute the claim. Claimant's failure to timely inform the Clerk of the Court of a new address as required by 22 NYCRR § 206.6 (f) does not defeat the service of the demand to his last known address and the return of the certified mail to the Court (see Kearney v State of New York, UID No. 2014-048-165 [Ct Cl, Bruening, J., Dec. 3, 2014]; see also Lebron v State of New York, UID No. 2015-015-046 [Ct Cl, Collins, J., Mar. 10, 2015]). This motion was served upon claimant at his last known address - the same address to which the 90-day demands had been sent, and he has not opposed the motion.
As conditions precedent to a motion to dismiss for want of prosecution, CPLR 3216 (b) requires that issue must have been joined, that one year must have elapsed since joinder of issue, and that a written demand to resume prosecution of the action and file a note of issue within ninety days be served in the manner required by CPLR 3216 (b) (3). All of these conditions have been met except that the demand that was served on claimant omits the statement that claimant must "resume prosecution of the action" as set forth in CPLR 3216 (b) (3). Inasmuch as "CPLR 3216 is a legislative creation and not part of the court's inherent power . . . the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action" (Wasif v Khan, 82 AD3d 1084, 1084-1085 [2d Dept 2011] [internal citations omitted]; see McDonald v State of New York, UID No. 2010-039-161 [Ct Cl, Ferreira, J., Jan. 22, 2010], citing Itskov v Menorah Home & Hosp. for the Aged & Infirm, 68 AD3d 723 [2d Dept 2009]). Thus, as all of the conditions precedent of CPLR 3216 have not been met, the Court cannot grant the motion. Accordingly, it is
ORDERED, that Motion No. M-88341 is DENIED.
July 28, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 114595, filed December 12, 2007; (2) Verified Answer, filed January 18, 2008; (3) Amended Claim, filed July 3, 2008; (4) Verified Answer, filed August 6, 2008; (5) Correspondence of Robert T. DeCataldo, dated May 15, 2008; (6) Correspondence of Robert T. DeCataldo, dated April 26, 2010; (7) Correspondence of Keith Butler, dated August 26, 2010; (8) Demand to File a Note of Issue, filed March 18, 2015; (9) Notice of Motion to Dismiss, dated April 1, 2016; (10) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated April 1, 2016, with Exhibits A-G, including: Affidavit of Lourdes Martinez, Parole Officer, sworn to February 27, 2015; Affidavits of Service of Consoula Darling, sworn to March 19, 2015; (11) Affidavit of Service of Motion of Tara K. Matthews, sworn to April 1, 2016.