Opinion
# 2016-038-539 Claim No. 114662 Motion No. M-88340
06-15-2016
KEITH TERRELL BUTLER v. THE STATE OF NEW YORK D.O.C.
KEITH TERRELL BUTLER, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Motion to dismiss for neglect to prosecute granted. All conditions precedent of CPLR 3216 are met, 90-day demand was sent by CMRRR to claimant's last known address, and he has not responded thereto.
Case information
| UID: | 2016-038-539 |
| Claimant(s): | KEITH TERRELL BUTLER |
| Claimant short name: | BUTLER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK D.O.C. |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114662 |
| Motion number(s): | M-88340 |
| 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: | June 15, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant was previously incarcerated in a State correctional facility, and this claim alleges that on November 7, 2007, he was served food that was contaminated with little black bugs (see Claim No. 114662, filed Jan. 2, 2008). Defendant moves pursuant to dismiss the claim for failure to prosecute.
Defendant answered the claim (see Verified Answer, filed Feb. 6, 2008), and the Court's file reflects that on several occasions during the early pendency of this claim, claimant sent correspondence to the Clerk of the Court inquiring about the status of this and other pending claims, and advised the Clerk pursuant to 22 NYCRR § 206.6 (f) of his transfers to a different correctional facility (CF) and change of mailing address. Claimant last informed the Clerk of the Court of his then-current mailing address at Great Meadow CF in August 2010. Defendant has demonstrated that claimant was released from incarceration to parole supervision on October 21, 2014, and that his parole officer was aware of his last known address as of February 27, 2015, at Dodson House (Back House), 92B Homestead Dr., Coram, New York 11727 (see Cagino Affirmation, Exhibit C). Claimant was thereafter returned to State custody in November 2015, and released upon the maximum expiration of his sentence on March 3, 2016 (see id.).
On March 19, 2015, defendant served upon claimant a demand to serve and file a note of issue within 90 days per CPLR 3216 by sending the demand to claimant at his last known address in Coram (see id. Exhibit D). The notice was sent by certified mail, return receipt requested, and was returned to the office of the Attorney General as unclaimed (see id. Exhibit E).
CPLR 3216 conditions the Court's exercise of discretion to dismiss a claim for failure to prosecute upon three prerequisites: "at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; see Vasquez v State of New York, 12 AD3d 917, 918 [3d Dept 2004]). Each of these events has occurred here. The demand to file a note of issue was mailed to claimant at his last known address on March 19, 2015, and service is deemed complete as of that date (see Kearney v State of New York, UID No. 2014-048-165 [Ct Cl, Bruening, J., Dec. 3, 2014]; CPLR 2103 [b] [2]; [c]). Claimant's time within which to respond to the 90-day demand expired on June 17, 2015, and his failure to do so warrants dismissal of the claim upon defendant's motion (see Vasquez v State of New York, 12 AD3d, at 918-919; CPLR 3216 [e]). Accordingly, it is
ORDERED, that defendant's motion is GRANTED and claim number 114662 is DISMISSED.
June 15, 2016
Saratoga Springs, New York
W. Brooks DeBow
Judge of the Court of Claims Papers considered: (1) Claim Number 114662, filed January 2, 2008; (2) Verified Answer, filed February 6, 2008, with Affidavit of Service, sworn to February 5, 2008; (3) Correspondence of Keith Butler, dated January 13, 2008; (4) Correspondence of Keith Butler, dated May 6, 2008; (5) Correspondence of Keith Butler, dated April 26, 2009; (6) Correspondence of Keith Butler, dated June 6, 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-E; (11) Affidavit of Service of Tara K. Matthews, sworn to April 1, 2016.