Opinion
# 2019-040-010 Claim No. 127467 Motion No. M-93116
01-25-2019
ISAAC FERNANDEZ v. THE STATE OF NEW YORK
Isaac Fernandez, Pro Se LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Claim dismissed for failure to prosecute the Claim pursuant to CPLR 3216.
Case information
| UID: | 2019-040-010 |
| Claimant(s): | ISAAC FERNANDEZ |
| Claimant short name: | FERNANDEZ |
| Footnote (claimant name) : | Caption amended to reflect the proper spelling of Claimant's surname. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127467 |
| Motion number(s): | M-93116 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Isaac Fernandez, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss this pro se Claim pursuant to CPLR 3216 for failure to prosecute, and the Uniform Rules for the Court of Claims § 206.6(f) for failure to apprise the Court of Claimant's current address, is granted.
This Claim, which was filed with the office of the Clerk of the Court on February 4, 2016, alleges that, on November 1, 2015, while incarcerated at Bare Hill Correctional Facility, Claimant was returning to his housing unit from the mess hall at approximately 11:50 a.m., when he was assaulted by an unknown inmate (Claim, ¶ 2).
Issue was joined when the State served its Verified Answer upon Claimant on March 3, 2016 (Affirmation of Christina Calabrese, Esq. [hereinafter, "Calabrese Affirmation"], ¶ 5, & Ex. B attached) and filed it with the Clerk of the Court on the same date. Defendant asserts that the last-known address for Claimant was the address he provided at the time the Claim was served and filed - Mid-State Correctional Facility (id., ¶ 7, & Ex. C attached). At the time the Claim was filed, Claimant was an inmate in the custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS") (id., ¶ 8, & Ex. A attached). Claimant was released from DOCCS' custody on February 8, 2018 (id., ¶ 9, & Ex. D attached). Defendant states that, on August 1, 2018, it served Claimant with a 90-day Demand to File a Note of Issue (hereinafter, "Demand"), by both regular and certified mail, return receipt requested, sent to Claimant at Mid-State Correctional Facility, 9005 Old River Road, P.O. Box 2500, Marcy, New York 13403 (id., ¶ 12, & Exs. E and F attached). This is the address the Court has in its records for Claimant. The Demand specified that a motion to dismiss the Claim for unreasonable neglect to proceed would result if Claimant failed to comply (id.). The Demand served by regular mail was returned to Defendant by the U.S. Postal Service with the preprinted notations "RETURN, RETURN TO SENDER, REFUSED, UNABLE TO FORWARD." In addition, handwritten in red ink is the notation "Rel" (id., ¶ 14, & Ex. I attached). The Demand served by certified mail, return receipt requested, was accepted at the correctional facility (id., ¶ 13, & Ex. G attached). That mail was returned by the postal service with the preprinted notations "RETURN, RETURN TO SENDER, REFUSED, UNABLE TO FORWARD." In addition, handwritten in red ink is the notation "Released" (id., ¶ 14, & Ex. H attached).
CPLR 3216 provides the general authority to dismiss a Claim for failure to prosecute. In order to do so, 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; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1977]). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2d Dept 1999]). When the demand is not received due to, for instance, the failure to keep the parties and the Court apprised of a change of address, then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]; Holman v State of New York, UID No. 2006-018-517 [Ct Cl, Fitzpatrick, J., May 10, 2006]). In addition, pursuant to Section 206.6(f) of the Uniform Rules for the Court of Claims, changes in the address or telephone number of any attorney or pro se claimant shall be communicated in writing to the Clerk of the Court within ten (10) days of the change.
Here, all the conditions have been met. Although Claimant never actually received the demand by certified mail, return receipt requested, or by regular mail, they were sent to his last-known address.
In accordance with CPLR 205(a), the Court notes that the Claim was filed just about three years ago. That is the only action Claimant took in connection with this matter. There is nothing in the Court's records to indicate that any disclosure or other activity has occurred since the Claim was filed. Finally, the Court notes that, pursuant to Section 206.6(f) of the Uniform Rules for the Court of Claims, changes in the address or telephone number of any attorney or pro se claimant shall be communicated in writing to the Clerk of the Court within ten (10) days of the change. It appears that Claimant has failed to comply with the rules of this Court requiring that he keep the Court apprised of his current address. Based upon his failure to comply with the Court rules, it is impossible for the Court (or Defendant) to communicate with Claimant. Thus, the Court determines that Claimant's conduct demonstrates a general pattern of delay in proceeding with his Claim. The Court further concludes that Claimant has neglected his Claim and lost interest in prosecuting it.
Therefore, based upon the foregoing, the Motion to dismiss for failure to prosecute based upon Claimant's failure to file and serve a Note of Issue and Certificate of Readiness as demanded, as well as his failure to keep the Court apprised of his current address, is granted.
January 25, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Filed Papers: Claim, Answer