Opinion
# 2019-038-506 Claim No. 126731 Motion No. M-93190
01-23-2019
No Appearance LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese Assistant Attorney General
Synopsis
Defendant's motion to dismiss for failure to prosecute granted. Although claimant filed a Note of Issue, he has not shown that he served it upon defendant either prior to or after service of defendant's 90-day demand.
Case information
UID: | 2019-038-506 |
Claimant(s): | THOMAS ALLEN KEARNEY |
Claimant short name: | KEARNEY |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 126731 |
Motion number(s): | M-93190 |
Cross-motion number(s): | |
Judge: | W. BROOKS DeBOW |
Claimant's attorney: | No Appearance |
Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 23, 2019 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
This claim, filed by claimant pro se, alleges that New York State Troopers effected a warrantless arrest of claimant in his home on August 31, 2015, and it asserts five causes of action related to the events of that evening. Defendant moves pursuant to CPLR 3216 to dismiss the claim for failure to prosecute. Claimant has not responded to the motion.
Issue was joined on October 20, 2015 with the service and filing of defendant's verified answer (see Verified Answer, dated and filed Oct. 20, 2015; Affidavit of Service, sworn to Oct. 20, 2015). On September 14, 2016, claimant filed the Note of Issue and Certificate of Readiness for Trial, but did not file an affidavit of service as required by the Court's rules (see 22 NYCRR 206.12 [a]). By correspondence dated November 14, 2017, claimant, who was then incarcerated in a State correctional facility, informed the Court that his anticipated release date was December 30, 2017, that his mailing address upon release would be 8 Hop-O-Nose, Catskill, New York, 12414, and that he was in negotiations with two attorneys to represent him on this claim (see Calabrese Affirmation, Exhibit C). To date, that mailing address remains claimant's address of record, and all correspondence following his release and referred to in this decision has been sent to that address. A telephone conference was conducted on January 16, 2018 after claimant's release, and was adjourned for 30 days to permit claimant to continue to seek employment and retain an attorney, and claimant was directed to contact chambers no later than February 16, 2018 about the status of his efforts to retain an attorney and to schedule a telephone conference call (see "So Ordered" Correspondence, dated Jan. 16, 2018). Claimant failed to contact chambers as required, and by correspondence dated February 21, 2018, claimant was requested to contact chambers (see Schulman Correspondence, dated Feb. 21, 2018). By correspondence dated May 9, 2018, claimant was notified that the claim was scheduled for a telephone conference call on May 23, 2018 (see Hadcock Correspondence, dated May 9, 2018). Claimant defaulted in appearing at the May 23, 2018 telephone conference, which was rescheduled for June 27, 2018 by correspondence dated May 24, 2018, and claimant was advised that his failure to appear at the next conference may result in dismissal of the claim (see "So Ordered" Correspondence, dated May 24, 2018). Claimant again defaulted in appearing at the June 27, 2018 telephone conference, which was rescheduled for July 25, 2018 by correspondence dated June 27, 2018, and claimant was advised that his failure to appear at the next conference will result in dismissal of the claim (Calabrese Affirmation, Exhibit D). On July 23, 2018, defendant served a 90-day demand to serve and file a note of issue and resume prosecution of the claim upon claimant by regular mail and by certified mail, return receipt requested (CMRRR) (see Calabrese Affirmation, ¶ 12; Exhibits F, G). The demand that was sent by CMRRR was returned to defendant marked "RETURN TO SENDER, UNCLAIMED, UNABLE TO FORWARD" (see id., ¶ 13; Exhibit G); the demand that was sent by regular mail was unreturned (see id., ¶ 14).
The conference scheduled for July 25, 2018 was also adjourned because claimant could not be reached at the telephone number that he previously provided to the Court.
The demand also stated that a "failure to serve and file a note of issue within ninety (90) days after receipt of this demand will serve as the basis for a motion for dismissal for unreasonable neglect to proceed" (Calabrese Affirmation, Exhibits F, G).
A motion to dismiss for want of prosecution cannot be granted absent satisfaction of three conditions precedent: (1) issue must have been joined; (2) one year must have elapsed since joinder of issue: and (3) the party seeking dismissal must have served upon claimant a written demand "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 . . . [claimant's failure to do so] will serve as a basis for a motion . . . [to dismiss the claim] for unreasonably neglecting to proceed" (CPLR 3216 [b] [3]). Here, defendant's submission conclusively establishes that all three preconditions have been met. With respect to defendant's mail service of the 90-day demand to claimant's address of record and last known address, the first class mail has not been returned by the United States Postal Service and is therefore presumed to have been received (see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]), and service of the CMRRR that was returned undelivered is deemed complete on the day it was mailed, July 26, 2018 (see Kearney v State of New York, UID No. 2014-048-165 [Ct Cl, Bruening, J., Dec. 3, 2014]; see also Calabrese Affirmation, Exhibit G). Thus, Claimant's time within which to respond to the 90-day demand and serve the Note of Issue expired on October 21, 2018.
Although claimant previously filed the Note of Issue, no affidavit of service has been filed and thus, a rebuttable presumption that the Note of Issue has been served on defendant has not been created. Nor has claimant responded to this motion or otherwise demonstrated that the Note of Issue has been served upon defendant as required by CPLR 3216 (c). Claimant's failure to demonstrate service of the Note of Issue or move to vacate the demand warrants dismissal of the claim upon defendant's motion (see CPLR 3216 [e]). Accordingly, it is
ORDERED, that defendant's motion number M-93190 is GRANTED, and claim number 126731 is DISMISSED.
January 23, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 126731, filed September 14, 2015; (2) Verified Answer, filed October 20, 2015; (3) Note of Issue and Certificate of Readiness for Trial, filed September 14, 2016; (4) Notice of Motion to Dismiss, dated November 20, 2018; (5) Affirmation of Christina Calabrese, AAG, in Support of Motion to Dismiss, dated November 20, 2018, with Exhibits A-G; (6) Affidavit of Service of Motion to Dismiss of Tara K. Matthews, sworn to November 27, 2018; (7) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated January 16, 2018; (8) Correspondence of Nancy Schulman, Principal Law Clerk, dated February 21, 2018; (9) Correspondence of Gina M. Hadcock, Secretary to Judge DeBow, dated May 9, 2018; (10) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated May 24, 2018; (11) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated June 27, 2018.