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Damus v. State

New York State Court of Claims
Jan 23, 2015
# 2015-049-008 (N.Y. Ct. Cl. Jan. 23, 2015)

Opinion

# 2015-049-008 Claim No. 121641 Motion No. M-85720

01-23-2015

JENNIFER DAMUS, infant by her mother and natural guardian, RUTH ALEXANDRE and RUTH ALEXANDRE, individually v. THE STATE OF NEW YORK

Ornstein & Ornstein, P.C. By: No appearance Eric T. Schneiderman, New York State Attorney General By: No appearance


Synopsis

The Court dismissed the claim for failure to prosecute pursuant to CPLR 3216 and Court of Claims Act § 19(3).

Case information


UID:

2015-049-008

Claimant(s):

JENNIFER DAMUS, infant by her mother and natural guardian, RUTH ALEXANDRE and RUTH ALEXANDRE, individually

Claimant short name:

DAMUS

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

121641

Motion number(s):

M-85720

Cross-motion number(s):

Judge:

DAVID A. WEINSTEIN

Claimant's attorney:

Ornstein & Ornstein, P.C. By: No appearance

Defendant's attorney:

Eric T. Schneiderman, New York State Attorney General By: No appearance

Third-party defendant's attorney:

Signature date:

January 23, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim was filed on August 16, 2012. Infant claimant Jennifer Damus, by her mother Ruth Alexandre, alleges that on June 12, 2005 she caught her foot on a "misfitted sidewalk vault and/or metal access door" on the south sidewalk of the Parade Grounds abutting the southern exposure of Prospect Park in Brooklyn (Claim ¶ 6), resulting in injuries including the partial amputation of her big toe.

Alexandre also brought a derivative claim on her own behalf, but it was withdrawn and ordered discontinued by order dated July 19, 2013.

At the time this action was commenced, claimant already had pending for several years an action in Supreme Court, naming New York City as a defendant. According to claimant's counsel, the impetus for this action was testimony given in the Supreme Court case, which indicated that the vault was under the ownership of the New York State Department of Environmental Conservation. Claimant was, however, unable to confirm such ownership through any other evidence. From 2013 to the present, progress on this front has proved elusive.

At a conference before the Court on July 17, 2013, claimant indicated that it would seek to inspect the vault, and I directed that by the next conference, claimant detail what efforts it had made in that regard. I also directed that the State indicate the steps it had taken to determine if DEC owned or operated the vault. Subsequent conferences were held on October 31 and December 10, 2013. At the latter, defendant represented that it had provided claimant with an affidavit from a DEC employee attesting that DEC did not own or operate the site. But claimant was unable to identify any other steps it had taken, or could take, to determine whether the State had an ownership interest in the vault. Two subsequent conference were held on February 19 and June 6, 2014, without any further progress.

At the June 6 conference, I indicated that given the absence of any progress on the case, or any prospect of such, I would issue a 90-day letter. Pursuant to that directive, on June 11, 2014 I served claimant with a Demand for Resumption of Prosecution of Action, via registered mail, returned receipt requested. The demand read, in pertinent part, as follows:

"More than one year having elapsed since issue was joined in this matter, the Court hereby demands pursuant to CPLR 3216 that the prosecution of the above entitled action be resumed and that a Note of Issue be served and filed herein within 90 days after receipt of this demand. Default in complying with this demand within the 90-day period may serve as a basis for an Order to Show Cause by the Court or a motion by the defendant for dismissal as against claimant for unreasonably neglecting to proceed."

No response was received from claimant during the 90-day period or thereafter, nor was the note of issue filed. As a result, by Order to Show Cause ("OTSC") dated September 23, 2014 I directed claimant to show by November 5, 2014 why this case should not be dismissed pursuant to CPLR 3216. The OTSC further provided that the Attorney General make any submission it may deem appropriate.

No response to the OTSC has been received.

Discussion

CPLR 3216(a) provided, at the time of the demand in this case:

Chapter 371 of the Laws of 2014 amended this provision. In regard to the language set forth below, it added the requirement that the dismissal only be "on notice to the parties." Chapter 371 also required that when a CPLR 3216 demand is serve by the Court, the demand itself must "set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation." Those amendments, however, did not become effective until January 1, 2015, after the demand sent in this case.

"Where 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. Unless the order specifies otherwise, the dismissal is not on the merits."

Further, the Court may in its discretion dismiss a claim under Court of Claims Act § 19(3) for "failure to appear or prosecute."

Dismissal under Rule 3216 requires that issue must have been joined for at least one year (CPLR 3216[b]), and the Court (or party seeking this relief) must have served a demand to the claimant "to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed." Once such notice has been served, and in the event claimant fails to file the Note of Issue within the deadline, he must show a "justifiable excuse for the delay and a potentially meritorious cause of action" to avoid dismissal (see Siegel v Commack Sch. Dist., 107 AD3d 687 [2d Dept 2013]).

Here, claimant has not responded to either the 90-day notice or the Order to Show Cause. Further, while claimant is clearly presented with a difficult quandary in trying to determine who owns the vault, in numerous court conferences claimant has neither been able to advance the process of identification, or point to a means whereby such ownership could be determined.

In light of the foregoing, claim no. 121641 is hereby dismissed for failure to prosecute pursuant to CPLR 3216 and Court of Claims Act § 19(3).

January 23, 2015

Albany, New York

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered:

1. The Court's Order to Show Cause dated September 23, 2014.

2. Claim filed on August 16, 2012.


Summaries of

Damus v. State

New York State Court of Claims
Jan 23, 2015
# 2015-049-008 (N.Y. Ct. Cl. Jan. 23, 2015)
Case details for

Damus v. State

Case Details

Full title:JENNIFER DAMUS, infant by her mother and natural guardian, RUTH ALEXANDRE…

Court:New York State Court of Claims

Date published: Jan 23, 2015

Citations

# 2015-049-008 (N.Y. Ct. Cl. Jan. 23, 2015)