Opinion
# 2015-040-063 Claim No. 121936
12-21-2015
DAVID KINLOCK v. THE STATE OF NEW YORK
David Kinlock, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Claim dismissed based upon Claimant's failure to prosecute the matter.
Case information
| UID: | 2015-040-063 |
| Claimant(s): | DAVID KINLOCK |
| Claimant short name: | KINLOCK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121936 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | David Kinlock, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By letter dated February 19, 2015, pro se Claimant was directed to resume prosecution of the Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of the letter or the Claim would be subject to dismissal, without further notice, pursuant to CPLR 3216.
The Court sets forth the history of the Claim as follows:
Claimant filed the Claim with the Clerk of the Court on October 26, 2012. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on April 4, 2013.
The State moved to dismiss the Claim: (1) as barred by the Statute of Limitations and (2) for lack of jurisdiction for failure to comply with the service requirements of the Court of Claims Act §§ 10 and 11. By Decision and Order dated February 28, 2013, the Court denied both portions of the State's motion (Kinlock v State, UID No. 2013-040-016 [Ct Cl, McCarthy, J.]).
By letter dated February 19, 2015, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be dismissed, without further notice, pursuant to CPLR 3216. The letter was sent via certified mail, return receipt requested, and a copy was sent via first-class mail to Claimant at Mohawk Correctional Facility, as that is the only address Claimant provided the Court. The Court received the certified mail return receipt card signed for by one "Tim Egelston," who, the Court can only presume was an employee of Mohawk Correctional Facility's mail room on February 22, 2015. On March 25, 2015, the envelope which was sent to Claimant by certified mail was received by the Court stamped "RETURN TO SENDER" and with a label affixed with the preprinted notations "RETURN TO SENDER," "NOT DELIVERABLE AS ADDRESSED," "UNABLE TO FORWARD" with a handwritten notation "Paroled 4/5/13" and "Address Unknown." The envelope that was sent by first-class mail was also returned to the Court on March 25, 2015 stamped "RETURN TO SENDER" and with a label affixed with the preprinted notations "RETURN TO SENDER," "NOT DELIVERABLE AS ADDRESSED," "UNABLE TO FORWARD" with a handwritten notation "Paroled 4/5/13" and "Address Unknown." The Court has received no response to date and the Note of Issue and Certificate of Readiness has not been filed.
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]).
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 over three years ago. Claimant's last action in connection with the Claim occurred when Claimant served Defendant with a copy of the Claim by certified mail, return receipt requested, on January 2, 2013 and filed a copy of the certified mail return receipt card with the Clerk of the Court on January 18, 2013, almost three years ago. 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 § 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.
Based upon the foregoing, it is:
ORDERED that the Claim is dismissed based upon Claimant's failure to file and serve a Notice of Issue and Certificate of Readiness as demanded.
December 21, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims