Opinion
# 2016-040-023 Claim No. 111950
04-07-2016
ELIJAH B. STEVENS v. THE STATE OF NEW YORK
Elijah B. Stevens, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq., AAG
Synopsis
Claim dismissed for failure to prosecute.
Case information
| UID: | 2016-040-023 |
| Claimant(s): | ELIJAH B. STEVENS |
| Claimant short name: | STEVENS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 111950 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Elijah B. Stevens, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 7, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By letter dated October 16, 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 February 6, 2006. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on March 8, 2006.
At the time the Claim was filed, Claimant was represented by Leon R. Koziol, Esq. By Order of Presiding Judge Richard E. Sise, dated June 30, 2006, the Claim was transferred from his Individual Assignment Calendar to the Individual Assignment Calendar of the Honorable Norman I. Siegel, and by further Order of Presiding Judge Sise, dated April 16, 2013, to the Individual Assignment Calendar of the Honorable Glen T. Bruening. By Notice dated September 12, 2013 and filed with the Clerk of the Court on September 16, 2013, Assistant Attorney General James Williams, Esq., notified Claimant and the Court that Mr. Koziol was suspended from the practice of law in New York State in February 2010 (see Matter of Koziol, 107 AD3d 1137, 1138 [3d Dept 2013], appeal dismissed, lv denied 21 NY3d 1056 [2013], cert denied ___ US ___, 134 SCt 1038 [2014] [noting Mr. Koziol's disciplinary history and suspending him from the practice of law for six months, until further order of the Court]; Matter of Koziol, 92 AD3d 1265 [4th Dept 2012] [suspension order lifted]; Matter of Koziol, 76 AD3d 1136 [3d Dept 2010], appeal dismissed 15 NY3d 943 [2010], lv denied 16 NY3d 853 [2011], cert denied ____ US ____, 132 SCt 455 [2011] [one-year suspension from practice imposed]; Matter of Koziol, 70 AD3d 1516 [4th Dept 2010], lv dismissed 16 NY3d 853 [2011], cert denied ____ US ____, 132 SCt 455 [2011] [Order of suspension entered]). The Notice required Claimant to advise the Court and defense counsel, pursuant to CPLR 321, of a newly-appointed counsel or if Claimant intended to represent himself. The Notice further demanded that Claimant resume prosecution of the Claim, pursuant to CPLR 3216(b), and to answer Defendant's Demand for a Verified Bill of Particulars served on September 13, 2006 and discovery demands as set forth in a Preliminary Scheduling Order issued by Judge Norman I. Siegel on August 10, 2007.
By Decision and Order dated November 19, 2013, Judge Bruening determined:
Here, the Court concludes that Defendant has sufficiently shown that service of a CPLR 321(c) notice on Claimant pursuant to CPLR 308 (1), (2), or (4) is impracticable based on Defendant's lack of a street address - either at Claimant's actual place of business or at Claimant's residence - at which Claimant could be served under those sections. The Notice of Intention to File a Claim attached to the Claim lists Claimant's address as P.O. Box 6012, Syracuse, New York 13217. Accordingly, the Court exercises its discretion and directs alternative service of the CPLR 321 (c) notice on Claimant at P.O. Box 6012, Syracuse, New York 13217 by both certified mail, return receipt requested and by first class mail nunc pro tunc as of September 12, 2013 (see e.g. Morgan Guar. Trust Co. of N.Y. v Hauser, 183 AD2d 683, 684 [1st Dept 1992]). As 30 days have elapsed since Defendant's nunc pro tunc service on the CPLR 321 (c) notice, the automatic stay is lifted, and the proceedings with respect to this Claim may continue. Now that the stay of adverse proceedings is hereby lifted, to the extent that Defendant wishes to serve Claimant with any other demands or notices, until Claimant provides the Court and Defendant with a street address, such service shall be made hereafter on Claimant at P.O. Box 6012, Syracuse, New York 13217, in such manner as the applicable statute requires (see e.g. CPLR 3216 [b]; 2013 [c]). Accordingly, based on the foregoing, Defendant's Motion No. M-84016 is granted.
Thereafter, by Order of Acting Presiding Judge Richard E. Sise, dated September 18, 2015, the Claim was transferred to the Individual Assignment Calendar of this Judge.
By letter dated October 16, 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 his last-known address - P.O. Box 6012, Syracuse, New York 13217. On December 14, 2015, the letter which was sent to Claimant by certified mail was received by the Court with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "NOT DELIVERABLE AS ADDRESSED," "UNABLE TO FORWARD." The letter that was sent by first-class mail was returned to the Court, on December 7, 2015, with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "VACANT," "UNABLE TO FORWARD." 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 more than 10 years ago. Claimant's last action in connection with the Claim occurred on July 25, 2007, when Claimant's counsel appeared before then-assigned Judge Norman I. Siegel with Defense counsel, and Judge Siegel executed a Preliminary Conference Scheduling Order on August 10, 2007. There is nothing in the Court's records to indicate that any disclosure or other activity has occurred since the July 25, 2007 Preliminary Conference was held. 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 Note of Issue and Certificate of Readiness as demanded.
April 7, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims