Opinion
# 2014-018-541 Claim No. 119736 Motion No. M-85461
10-27-2014
STEVEN CIERI v. STATE OF NEW YORK
STEVEN CIERI Pro Se RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC By: Natanya E. DeWeese, Esquire Matthew A. Lenhard, Esquire
Synopsis
Defendant brought a motion for failure to prosecute which was granted to the extent that if Claimant does not file a note of issue or have an attorney file a notice of appearance on or before December 15, 2014, the claim will be dismissed on December 16, 2014.
Case information
| UID: | 2014-018-541 |
| Claimant(s): | STEVEN CIERI |
| Claimant short name: | CIERI |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119736 |
| Motion number(s): | M-85461 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | STEVEN CIERI Pro Se |
| Defendant's attorney: | RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC By: Natanya E. DeWeese, Esquire Matthew A. Lenhard, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | October 27, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim for failure to prosecute. Claimant, pro se, opposes the motion. Based upon a letter which Claimant sent to the Court dated August 11, 2014 and forwarded to Defendant's counsel, the Court notified the parties that it would treat it as a motion for appointment of counsel. Defendant opposes Claimant's request.
This claim was filed with the Clerk of the Court on April 18, 2011. At that time, Claimant was represented by counsel, however, on January 31, 2013, this Court granted Claimant's former counsel's Order to Show Cause relieving him and his firm from further representation. The Court gave Claimant 120 days from January 31, 2013, to find new counsel or advise the Court in writing that he would be proceeding pro se. On June 19, 2013, the Court had a telephone conference with Claimant and counsel for Defendant and gave Claimant an additional 90 days to find an attorney, or until September 17, 2013. Since that time, no attorney has filed a notice of appearance on behalf of Claimant.
On June 29, 2013, Claimant began a sentence of incarceration in Pennsylvania, where he remains to date. Defendant served Claimant with a notice to produce on August 6, 2013. According to Defendant's counsel, on August 13, 2013, Claimant called him to acknowledge receipt of the notice to produce and verify that he was incarcerated.
On November 11, 2013, Defendant moved for summary judgment based upon Claimant's failure to prosecute the claim and on substantive grounds under the Labor Law. The Court, in a written Decision and Order, denied the motion for failure to prosecute on the grounds that Defendant had failed to adequately establish that all the requirements of CPLR 3216 had been met, and partially granted Defendant summary judgment on two of Claimant's Labor Law causes of action.
Cieri v State of New York, UID No. 2014-018-505, (Ct Cl, Fitzpatrick, J., Feb. 27, 2014).
On April 30, 2014, Defendant served a Demand to Resume Prosecution upon Claimant by certified mail, return receipt requested. The Demand notified Claimant that a note of issue and certificate of readiness must be filed within 90 days or his claim may be dismissed. No note of issue or certificate of readiness has been filed to date. Claimant did not respond to the Demand. Thereafter, Claimant was served with a copy of this motion to dismiss. He responded by letter dated August 4, 2014, addressed to the Chief Clerk of the Court, stating that he fully intends to resume prosecution of his claim but he cannot do so until he is released from prison. He alleges that he has been incarcerated since June 29, 2013, just 10 days after the Court extended his time to find counsel. He alleges that he cannot find an attorney while he is incarcerated. He also sent another letter on the same date directly to chambers, requesting appointment of counsel and advising that he is still incarcerated. By letter dated August 11, 2014, Claimant requested the Court appoint counsel to represent him. Defendant submits opposition to Claimant's request by letter and affidavit.
The Court will address the motion for the appointment of counsel first.
Appointment of Counsel
CPLR section 1101 permits a person to bring a motion seeking permission to proceed as a poor person. The privileges of being granted poor person status include, appointment of an attorney, provision of a court transcript, accommodations in submissions of briefs and appendices on appeals, and relief from payment of costs and fees associated with prosecuting the action (CPLR 1102 [a]-[d]).
In this case, the fee for commencing the action in the Court of Claims has already been paid, and there are no other costs associated with prosecuting the action in this Court. The claim involves a Labor Law cause of action for personal injuries. The appointment of counsel in this type of case is not required by the constitution or by statute; it is discretionary (see Matter of Smiley, 36 NY2d 433 [1975]; Stephens v State of New York, 93 Misc 2d 273 [Ct Cl 1978]). For litigants involved in private litigation, absent statutory authority, the courts have no authority to direct the provision of counsel or to require compensation of retained counsel out of public funds (Matter of Smiley, supra). Furthermore, negligence cases are typically handled by attorneys on a contingency basis. After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (see Matter of Smiley, supra; DeLeon v State of New York, 52 AD3d 1282 [4th Dept 2008]). Claimant commenced this action with the benefit of counsel, and it is quite possible, if actively pursued, Claimant could find an attorney to represent him on a contingency fee basis.
Claimant's motion is DENIED.
Motion to Dismiss pursuant to CPLR 3216
CPLR 3216 (a) provides that "[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms." Dismissal under the statute is only permitted, however, where three condition precedents have been met: issue has been joined, the action has been pending for one year since the joinder of issue, and a written demand has been served upon the party against whom the relief is sought by registered or certified mail requiring that party to resume prosecution of the action and serve and file a note of issue within ninety days of receipt (CPLR 3216 [b] [1]-[3]).
Here, Claimant was allegedly injured when, as an employee of Pike Company, Inc., he was involved in the construction of a parking garage at the New York State College of Human Ecology at Cornell University in Ithaca, New York. Claimant was injured around 10:45 a.m., on October 22, 2008, when a reshoring pole he and another worker had installed fell and struck him on the head. The claim was filed and served by permission from the Court on April 18, 2011, asserting violations of the Labor Law. Defendant served a verified answer to the claim on May 17, 2011. Claimant served a Verified Bill of Particulars, dated February 20, 2012. Thereafter, the Court relieved Claimant's counsel as noted above and directed Claimant to obtain new counsel or proceed pro se.
Defendant served Claimant, pro se, with a Notice to Produce, in August 2013. According to Defendant's counsel, Claimant contacted him and acknowledged receiving the discovery demand, and advised that he was currently incarcerated. Claimant has taken no further action on his claim, other than a letter dated August 15, 2013, sent to the Court advising that he was incarcerated in the Bradford County Correctional Facility in Pennsylvania, and that he was going to ask Defendant's counsel to settle the case. There has also been the recent correspondence as a result of the service of this motion to dismiss, i.e., two letters dated August 4, 2014, one letter dated August 11, 2014. Additionally, a letter was received on August 14, 2014, advising of Claimant's new address.
Defendant has established proper service of the Demand to Resume Prosecution by providing an affidavit of service stating that the demand was mailed to Claimant by certified mail, return receipt requested, at his last known address at State Correctional Institute Waymart, in Waymart, Pennsylvania by depositing the demand in a depository of the United States Postal Service. This is also the same address Claimant indicates as his return address on his August 4 and 11, letters to the Court. Service is deemed complete when properly mailed, and presumption of delivery arises once adequate proof of mailing is produced (Sport-O-Rama Health & Fitness Ctr., Inc. v Centennial Leasing Corp., 100 AD2d 584 [2d Dept 1984]; Caprino v Nationwide Mutual Ins. Co., 34 AD2d 522 [1st Dept 1970]).
Defendant has also attached a copy of the signed return receipt showing delivery at Claimant's address and an indecipherable signature acknowledging receipt, however, it is dated May 2, 2013, although the affidavit of service reflects the mailing was sent April 30, 2014. Even without the return receipt, the mailing to Claimant's correct address without it being returned to sender supports the presumption of delivery.
Once Defendant has met the requirements of CPLR 3216, the burden shifts to the Claimant to file the note of issue or seek an extension of time to file the note of issue, to show a justifiable excuse for the delay and, if the 90 days have expired, a meritorious cause of action (Walton v Clifton Springs Hosp. & Clinic, 255 AD2d 964 [4th Dept 1998]; Versatile Furniture Prods. v 32-8 Maujer Realty, 97 AD2d 463 [2d Dept 1983]; Keating v Smith, 20 AD2d 141 [2d Dept 1963]).
Claimant asserts in his letters that he plans to resume prosecution of the action when he is released from prison. He argues that the reason he has not continued the prosecution of this claim is because he only had 10 days after the Decision and Order was issued to get a new attorney before he was incarcerated in Pennsylvania and he does not have access to any New York information.
The Court is not persuaded by Claimant's assertions. First, Claimant had six months, not merely ten days, before he was incarcerated to obtain new counsel after the Court allowed his attorney to withdraw from further representation. Claimant has not provided any indication that he has made any effort, at any time, to obtain new counsel. Defendant has served this motion to dismiss, almost six years after Claimant's causes of action accrued, more than three years after issue was joined, and 1½ years after Claimant was given time to obtain an attorney to represent him or to proceed pro se. Although Claimant has been incarcerated, this is not good cause for such an extensive delay in proceeding with this action (cf., Matter of Csaszar v County of Dutchess, 95 AD3d 1009 [2d Dept 2012] [failure to seek leave to file late notice of claim within one year not excused by incarceration or difficulty obtaining counsel]). Court of Claims Act section 19 (3) authorizes the Court to dismiss a claim for failure to prosecute (see Dickan v State of New York, 16 AD3d 760 [3d Dept 2005]; Shabazz v State of New York, 191 AD2d 832 [3d Dept 1993]
Accordingly, the Court will grant Defendant's motion on the following terms: Claimant shall have until December 15, 2014, to file a note of issue with the Clerk of the Court and serve a copy upon Defendant's counsel or have an attorney file a notice of appearance (CPLR 3216 [a]). If no note of issue or notice of appearance is filed with the Clerk of this Court by that date, THIS CLAIM WILL BE DISMISSED AS OF DECEMBER 16, 2014.
October 27, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affidavit of Natanya E. DeWeese, Esquire, sworn July 29, 2014, in support, with exhibits attached thereto.
3) Two letters dated August 4 and 11, 2014, respectively from Steven Cieri, pro se, in opposition.
4) Affidavit of Matthew A. Lenhard, Esquire, sworn to September 15, 2014, in support, with exhibits attached thereto.
5) Letter from Matthew A. Lenhard, Esquire, in support dated September 30, 2014.