Opinion
# 2014-039-412 Claim No. 110580 Motion No. M-84528
05-30-2014
JOHN DAWSON v. STATE OF NEW YORK
John Dawson, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General
Synopsis
Defendant's motion for an order dismissing the claim based upon claimant's failure to prosecute is granted pursuant to Court of Claims Act § 19 (3).
Case information
| UID: | 2014-039-412 |
| Claimant(s): | JOHN DAWSON |
| Claimant short name: | DAWSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 110580 |
| Motion number(s): | M-84528 |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | John Dawson, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On March 1, 2005, claimant, then an inmate proceeding pro se, filed this claim with the Clerk of the Court of Claims. Defendant served its verified answer upon claimant on March 28, 2005 and filed it with the Clerk of the Court on March 30, 2005.
Simultaneously with his claim, claimant moved for permission to proceed as a poor person in this action and for assignment of counsel. The Court denied the motion in a Decision and Order dated June 9, 2005 (Dawson v State of New York [Ct Cl, Mignano, J., June 9, 2005]).
At the time he filed this claim, claimant was an inmate confined in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) at Wallkill Correctional Facility in Wallkill, New York. A search of DOCCS' website (www.doccs.ny.gov) by claimant's DIN number indicates that claimant was conditionally released to parole supervision on December 5, 2005. To date, claimant has not informed the Court of any change of address (see Uniform Rules for the Court of Claims § 206.6 [f]).
Defendant now moves, pursuant to CPLR 3216, for an order dismissing the claim for claimant's alleged failure to prosecute it. The motion was made returnable on February 5, 2014. Claimant has not submitted any response to the motion.
An affidavit of service appended to defendant's motion indicates that, on January 16, 2014, the motion and supporting papers were mailed to claimant at 60 California Avenue, 1st Floor, Hempstead, New York 11550.
CPLR 3216 authorizes the Court to dismiss a claim upon motion or upon its own initiative for failure to prosecute the claim. In order to do so, all of the following statutory requirements 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 have been served upon the party by certified or registered mail
"requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed" (CPLR 3216 [b]).
(see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). Service is complete upon receipt of the 90-day demand (see Vasquez v City of New York, 5 AD3d 672 [2d Dept 2004]; Lopez v State of New York, 21 Misc 3d 563, 565 [Ct Cl 2008]). However, "[w]hen 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" (Lopez v State of New York, 21 Misc 3d at 565-566; see Watson v State of New York, UID No. 2012-040-003 [Ct Cl, McCarthy, J., Jan. 26, 2012]).
In support of its motion, defendant has submitted evidence that, by letter dated April 30, 2013, defendant served a written demand upon claimant to "file a note of issue," advising claimant that his "failure to serve a note of issue within ninety(90) days after receipt of this demand will serve as the basis for a motion for dismissal for unreasonable neglect to proceed" (Affirmation in Support of Motion, Exhibit C). Defendant's evidence establishes that it sent the 90-day demand by certified mail, return receipt requested, and by regular first class mail, to claimant at his "last known address," 60 California Avenue, 1st Floor, Hempstead, New York 11550 (Affirmation in Support of Motion ¶ 5). Defendant states that the certified mailing was returned to sender, but the first class mailing was not.
Here, all of the conditions set forth in CPLR 3216 have been met. Issue was joined by service of defendant's answer on March 28, 2005, and more than one year has elapsed since that date. In addition, defendant has established that it served claimant with a written demand at his last known address that meets the requirements of CPLR 3216 (b). Over 90 days have elapsed since service of the written demand, and claimant has not filed a note of issue and certificate of readiness. Although it appears that claimant may not have received the 90-day demand, service of the demand was made upon claimant by certified mail, return receipt requested, and by regular first class mail at his last known address, in accordance with CPLR 2103 (see CPLR 2103 [b][2]; [c]; see also Perez v State of New York, UID No. 2008-038-623 [Ct Cl, DeBow, J., Nov. 5, 2008]).
As noted above, claimant was released from State custody in December 2005. The Court's records indicate that claimant has not taken any action in connection with the claim since that time, and has never informed the Court of any change of address as required by the Uniform Rules for the Court of Claims § 206.6 (f). The Court finds that claimant's conduct demonstrates a general pattern of delay in proceeding with his claim and concludes that claimant has neglected his claim and lost interest in prosecuting it. Therefore, pursuant to the discretionary authority provided by Court of Claims Act § 19 (3), this claim is dismissed for failure to prosecute (see Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]; Shabazz v State of New York, 191 AD2d 832, 832-833 [3d Dept 1993], lv dismissed and lv denied 82 NY2d 736 [1993], cert denied 511 US 1094 [1994]).
Based upon the foregoing, it is ordered that Motion No. 84528 is granted and claim No. 110580 is dismissed.
May 30, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated January 16, 2014; and 2. Affirmation in Support of Motion by Douglas R. Kemp, AAG dated January 16, 2014, with attached exhibits.