Opinion
# 2020-040-014 Claim No. 128788 Motion No. M-94836
02-13-2020
JAMES SEELEY v. THE STATE OF NEW YORK
James Seeley, Pro Se LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG
Synopsis
Claim dismissed for failure to resume prosecution per CPLR 3216(e).
Case information
| UID: | 2020-040-014 |
| Claimant(s): | JAMES SEELEY |
| Claimant short name: | SEELEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128788 |
| Motion number(s): | M-94836 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | James Seeley, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show Cause returnable January 22, 2020, the Court ordered Claimant to show cause why his Claim should not be dismissed for failure to resume prosecution.
Claimant's Claim was filed in the Office of the Clerk of the Court on November 9, 2016 and alleges that the State was negligent and negligently supervised Claimant (Claim, ¶¶ 3, 4). Claimant further asserts that he served a Notice of Intention to File a Claim upon the Attorney General on October 3, 2016, and filed the Notice of Intention in the Office of the Clerk of the Court on the same date (Claim, ¶¶ 3, 4, 11, 13). The Notice of Intention is attached to Claimant's Claim and is part of his filed Claim. It asserts that, on July 29, 2016, Claimant was working in the mess hall at Bare Hill Correctional Facility when he suffered a chemical burn. He went to emergency sick call and was treated for burns to both arms and hands. Issue was joined when the State served and filed its Verified Answer on December 8, 2016. By Order of Acting Presiding Judge Richard E. Sise, dated August 10, 2017, this Claim was transferred from the prisoner pro se calendar to the calendar of the undersigned. By letter, dated August 31, 2017, the parties were advised that a Preliminary Conference would be held by telephone on October 11, 2017 at 11:00 a.m. The Court directed that Claimant provide the Court with his daytime telephone number upon receipt of that letter. The correspondence was sent to the address Claimant verbally provided to Hon. Frank Milano's Chambers in his two other Claims. On February 22, 2017, Judge Milano's Chambers then provided Claimant's address to the Clerk of the Court. The letter was returned to the Court on September 12, 2017 with the printed notation "RETURN TO SENDER … REFUSED … UNABLE TO FORWARD." The envelope also contained a handwritten notation in black marker ink "He was moved … Send back." Claimant did not provide the Court with his telephone number and he did not appear at the conference.
The Court notes that Claimant sent an undated letter to the Clerk of the Court that was received on August 28, 2017, requesting "all relevant information" on his Claims. The Clerk of the Court responded to Claimant by letter, dated August 29, 2017, advising him of the cost per page of copies and requested that Claimant resubmit his request indicating the documents he was seeking. That letter was sent to Claimant at Franklin Correctional Facility. The undersigned received copies of the two above documents on February 1, 2018. By that time, Claimant had been released from the custody of the Department of Corrections and Community Supervision on January 5, 2018.
On April 16, 2019, the Court sent Claimant a letter by certified mail, return receipt requested, and by first-class mail, that set forth the defaults that demonstrated his unreasonable neglect to proceed and demanded that he serve and file the Note of Issue and Certificate of Readiness within 90 days of receiving that letter, pursuant to CPLR 3216(b)(3). The letter was addressed to Claimant at Franklin Correctional Facility (hereinafter, "Franklin") and at the address Claimant provided to Judge Milano's Chambers. On April 22, 2019, both letters sent to Claimant at Franklin were returned to the Court. The correspondence sent by first-class mail was returned with the notation "Forward Order Expired" and the handwritten notation in red ink "discharged 1/15/18." The envelope sent by certified mail, return receipt requested was returned with the notation "Inmate Moved." The letters addressed to Claimant at his other address, on Route 9 in Gansevoort, New York were also both returned. The green certified mail return receipt card was received by the Court on April 22, 2019. The signature on the card is illegible and is dated received on April 18, 2019. The envelope was returned to the Court on May 8, 2019 with the handwritten notation "Send back, he was moved more than two years"[sic]. The envelope also contained a printed notation "RETURN TO SENDER … NOT DELIVERABLE AS ADDRESSED … UNABLE TO FORWARD." The envelope sent by first-class mail was also returned to the Court on May 8, 2019. It contained a handwritten notation, "Moved send back" and a printed notation "RETURN TO SENDER … NOT DELIVERABLE AS ADDRESSED … UNABLE TO FORWARD."
Claimant has not corresponded with the Court since his letter requesting information, that was received on August 28, 2017, and the Note of Issue and Certificate of Readiness has yet to be filed.
The Order to Show Cause the Court sent by certified mail, return receipt requested to Claimant at his last-known address (the Gansevoort address) was returned to the Court, and the envelope contained the handwritten notation "Said moved 3 years ago …" along with the printed notation "RETURN TO SENDER … NOT DELIVERABLE AS ADDRESSED … UNABLE TO FORWARD." However, the copy of the Order to Show Cause sent by first-class mail was not returned.
Claimant has not responded to the Order to show Cause, has not filed the Note of Issue and Certificate of Readiness, and has not demonstrated any reason for his neglect to prosecute the Claim nor shown justifiable excuse for the delay in serving and filing the Note of Issue and Certificate of Readiness.
Accordingly, and in accordance with CPLR 3216(e), it is
ORDERED, that Claim number 128788 is DISMISSED for want of prosecution.
February 13, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court: Papers Numbered Order to Show Cause 1 Letter from Court to Claimant dated April 16, 2019 2 Filed Papers: Claim, Answer, Order of Transfer