Opinion
# 2012-048-515 Claim No. 112255
10-22-2012
ANTHONY WALKER v. THE STATE OF NEW YORK
Synopsis
The Court dismissed the Claim for failure to prosecute pursuant to CPLR 3216. Case information
UID: 2012-048-515 Claimant(s): ANTHONY WALKER Claimant short name: WALKER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 112255 Motion number(s): Cross-motion number(s): Judge: GLEN T. BRUENING ANTHONY WALKER, Pro Se Claimant's attorney: No Appearance HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: G. Lawrence Dillon, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: October 22, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, by and through his mother and legal guardian, Minette Parks, commenced this action seeking money damages for personal injuries he sustained on February 18, 2006 when he was injured at Defendant's Tryon Residential Center Complex, located in Fulton County. By Decision and Order dated November 21, 2011, this Court granted Claimant's former counsel's application to withdraw as attorney of record based on Claimant's failure to communicate with counsel (see Walker v State of New York, Claim No. 112255, Motion No. M-79900, Bruening, J. [ November 22, 2011]). In that Decision and Order, a copy of which was served on Claimant on January 26, 2012 at his last known address on file with the Clerk of the Court, the Court directed that within 90 days Claimant shall file with the Clerk of the Court and the New York State Attorney General either (1) a written statement that he will proceed with his Claim without an attorney, or (2) a notice of appearance by a new attorney. The Court received no response from Claimant.
By Order dated June 15, 2012, Claimant was directed to resume prosecution of this Claim pursuant to CPLR 3216 (b) (3) and to serve and file a Note of Issue within 90 days. In that Order, Claimant was advised that failure to comply would serve as a basis for the Court to dismiss the Claim for unreasonably neglecting to proceed. The Court's Order was mailed via certified mail, return receipt requested, and a copy was sent via first-class mail on June 15, 2012 to Claimant's last known address on file with the Clerk of the Court. The envelope sent by first-class mail was returned to the Court on June 25, 2012 with the notations "RETURN TO SENDER," "INSUFFICIENT ADDRESS," and "UNABLE TO FORWARD." The envelope sent by certified mail, return receipt requested was returned to the Court on July 9, 2012 with the notations "RETURN TO SENDER," "UNCLAIMED," and "UNABLE TO FORWARD." To date, the Court has received no response from Claimant, and the Note of Issue has not been filed.
22 NYCRR § 206.6 (f) provides that "[c]hanges in the post office address or telephone number of any attorney or pro se claimant shall be communicated in writing to the clerk within ten days thereof."
CPLR 3216 authorizes the Court, on its own initiative, to dismiss a Claim for failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a written demand has been served upon the party by certified or registered mail (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). While the 90-day period to respond to such a demand generally runs from receipt (see Vasquez v City of New York, 5 AD3d 672, 672 [2d Dept 2004]) where, as here, the demand was returned based on a Claimant's failure to notify the Court of a change of address, then service is deemed complete upon mailing to Claimant's last known address (see Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]; see also CPLR 2103 [b] [2]; 22 NYCRR §206.6 [f]).
Claimant commenced this action on April 26, 2006. Thereafter, issue was joined on June 2, 2006. More than 90 days has lapsed since Claimant was served at his last known address with the June 15, 2012 Order pursuant to CPLR 3126. Based on the forgoing, the Court concludes that the statutory preconditions to dismissal have been met (see Baczkowski v Collins Constr. Co., 89 NY2d at 503). Claimant's failure to either serve and file the Note of Issue within that 90-day time frame or move to either vacate the Court's June 15, 2012 Order or extend his time to file the Note of Issue requires that the Claim be dismissed (see Vasquez v State of New York, 12 AD3d 917, 918 [3d Dept 2004]). Furthermore, Claimant's failure to respond to former counsel's communications (see Walker v State of New York, Claim No. 112255, Motion No. M-79900, Bruening, J. [ November 22, 2011]), as well as his failure to notify the Clerk of his current address or respond to subsequent communications from the Court, demonstrates a general pattern of delay in proceeding with this Claim (see CPLR § 205 [a]).
Accordingly, it is hereby
ORDERED that the Claim is dismissed based upon Claimant's failure to file and serve a Note of Issue as demanded.
October 22, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed April 26, 2006, with attached Notice of Intention to File a Claim, Affidavit of Service and Stipulated Confidentiality Order;
Answer, filed June 2, 2006;
Correspondence from the Court, dated June 15, 2012 and Order, dated June 15, 2012, with return envelopes, received June 25, 2012 and July 9, 2012.