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.