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Lebron v. State

New York State Court of Claims
Mar 10, 2015
# 2015-015-046 (N.Y. Ct. Cl. Mar. 10, 2015)

Opinion

# 2015-015-046 Claim No. 110915 Motion No. M-86039

03-10-2015

FREDERICK LEBRON v. THE STATE OF NEW YORK

Frederick Lebron, Pro Se No Appearance Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General


Synopsis

Claim was dismissed for failure to prosecute pursuant to CPLR 3216.

Case information


UID:

2015-015-046

Claimant(s):

FREDERICK LEBRON

Claimant short name:

LEBRON

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

110915

Motion number(s):

M-86039

Cross-motion number(s):

Judge:

FRANCIS T. COLLINS

Claimant's attorney:

Frederick Lebron, Pro Se No Appearance

Defendant's attorney:

Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General

Third-party defendant's attorney:

Signature date:

March 10, 2015

City:

Saratoga Springs

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves to dismiss the claim for failure to prosecute pursuant to CPLR 3216.

On May 20, 2005 claimant, a pro se inmate, filed the instant claim alleging the loss of certain personal property as a result of the defendant's negligence. In support of its dismissal motion, defendant submits the affidavit of Judy Palmer, an Inmate Records Coordinator at Mohawk Correctional Facility. Ms. Palmer avers the claimant was released from prison on September 19, 2007 and that prison records indicate his last known address is Phoenix House, 480 E. 185th Street, Bronx, New York 10458-7811. Defense counsel indicates that it has received no communication from the claimant since the date issue was joined on June 27, 2005. Given the nine-year lapse of time since the date the claim was filed, defense counsel served a demand that he resume prosecution of the action and serve and file the note of issue within 90 days. The demand was served on the claimant at his last known address by both regular mail and certified mail, return receipt requested, on June 12, 2014. Both demands were returned by the United States Postal Service with the notation "MOVED, LEFT NO ADDRESS" (defendant's Exhibit E). To date, the note of issue has not been filed and review of the Court's file in this matter reflects no activity by the parties, other than the service of the 90-day Demand, since issue was joined in 2005.

The claimant's failure to serve and file a note of issue within 90 days as demanded or otherwise move to either vacate the demand or seek an extension of time within which to file a note of issue requires dismissal of the claim for failure to prosecute (CPLR 3216; Court of Claims Act § 19 [3]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Dickan v State of New York, 16 AD3d 760 [3d Dept 2005]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2d Dept 2002], lv denied 100 NY2d 502 [2003]; Nelson v State of New York, 10 Misc 3d 1061[A] [Ct Cl 2005]). Inasmuch as claimant was required to communicate changes in his post office address in writing to the Clerk within 10 days thereof, the fact that claimant may not have resided at the address to which the 90-day demand was sent is of no consequence (see 22 NYCRR § 206.6 [f]). Under these circumstances, service of the 90-day demand at the claimant's last known address was in all respects proper (see CPLR 2103 [b] [2], [c]).

The conditions precedent to dismissal set forth in CPLR 3216 (b) having been met, the claim is dismissed.

March 10, 2015

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

Notice of motion dated November 7, 2014;

Affirmation of Paul F. Cagino dated November 7, 2014 with exhibits.


Summaries of

Lebron v. State

New York State Court of Claims
Mar 10, 2015
# 2015-015-046 (N.Y. Ct. Cl. Mar. 10, 2015)
Case details for

Lebron v. State

Case Details

Full title:FREDERICK LEBRON v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 10, 2015

Citations

# 2015-015-046 (N.Y. Ct. Cl. Mar. 10, 2015)