Opinion
# 2012-039-313 Claim No. 115608
06-18-2012
MORALES v. STATE OF NEW YORK
Synopsis
Claim is dismissed on the Court's initiative for failure to prosecute pursuant to CPLR 3216. Case information
UID: 2012-039-313 Claimant(s): MIGUEL MORALES Claimant short name: MORALES Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115608 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Miguel Morales, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Belinda A. Wagner Assistant Attorney General Third-party defendant's attorney: Signature date: June 18, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim for damages was filed on July 30, 2008. In the claim, claimant, then an inmate proceeding pro se, alleges that he was injured as a result of the negligence of the State's doctor in prescribing medication to claimant while he was incarcerated. Issue was joined in August 2008.
The relevant history of this claim is set forth as follows. By letter dated November 13, 2010, claimant notified the Clerk of the Court of Claims that he had been released from custody and provided a new address at a rehabilitation facility. By letter dated June 20, 2011, claimant informed the Clerk that he had left the rehabilitation facility and provided a new address, located at "2094 5ve Apt 2D, N.Y., N.Y. 10035" (Letter from Claimant, received June 22, 2011). On June 30, 2011, this claim was transferred to the individual assignment calendar of the undersigned.
In September 2011, the Court mailed a blank preliminary conference order to claimant at "2094 5th Avenue, Apt 2D, New York, NY 10035".The Court advised claimant to prepare the preliminary conference order after conferring with defendant's counsel and return it to the Court. The Court informed claimant that, in the event that the order was not received by the Court, the parties would be required to attend a telephone conference on November 1, 2011 at 10:30 A.M. and that failure to appear for the conference would be considered a calendar default and would subject claimant to a penalty pursuant to the Uniform Rules for the Court of Claims. The Court did not receive a prepared order signed by both parties and was unable to contact claimant for the November 1, 2011 telephone conference because claimant had failed to respond to the Court's September 2011 correspondence.
The Court initially inadvertently mailed the blank preliminary conference order to claimant at his former address at the rehabilitation facility. When it was returned to the Court as undeliverable, the Court resent the blank preliminary conference order to claimant's 5th Avenue address. As the Court's September 2011 mailing to the 5th Avenue address was not returned, the Court presumes that the address it utilized was correct and that claimant received that correspondence (see e.g. Allen v State of New York, UID # 2007-041-039, Claim No. 105397, Motion No. M-73731, Milano, J. [Aug. 29, 2007]).
By letter dated November 1, 2011, the Court requested that claimant contact the Court to reschedule the conference and informed claimant that "failure to contact the Court may result in dismissal of this claim" (Letter to Claimant, dated November 1, 2011). This letter was mailed via first-class mail to claimant at the 5th Avenue address. It was returned to the Court unopened with the handwritten notations "MOVED" and "UTF." A sticker affixed to the envelope states "RETURN TO SENDER. NOT DELIVERABLE AS ADDRESSED. UNABLE TO FORWARD."
By letter dated January 19, 2012, the Court informed claimant that a compliance conference on this claim was scheduled for March 6, 2012 and asked claimant to provide the Court with a telephone number to contact claimant on that date. The Court advised claimant that the failure to contact the Court may serve as the basis for dismissal of the claim pursuant to the Uniform Rules for the Court of Claims § 206.10 (g). This letter was mailed to claimant via first-class mail at the 5th Avenue address and was returned to the Court with the same notations as present on the November 1, 2011 letter. The Court was thus unable to contact claimant for the March 6, 2012 conference.
By letter dated March 8, 2012, the Court ordered claimant, pursuant to CPLR 3216 (b) (3), to resume prosecution of this claim and to serve and file a note of issue within 90 days of receipt of the letter. The Court informed claimant that his failure to comply with the order would serve as the basis for dismissal of the claim without further notice for neglecting to proceed. This letter was sent on March 8, 2012 via certified mail, return receipt requested and via first-class mail to claimant at the 5th Avenue address. Both envelopes were returned to the Court unopened with the handwritten notations "MOVED" and "UTF" and with stickers affixed stating "RETURN TO SENDER. NOT DELIVERABLE AS ADDRESSED. UNABLE TO FORWARD." To date, the Court has received no response from claimant, and the note of issue and certificate of readiness has not been filed.
CPLR 3216 authorizes the Court to dismiss a claim on 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 [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 # 2012-040-003, Claim No. 115752, McCarthy, J. [Jan. 26, 2012]).
Here, all of the statutory requirements have been met. As noted above, issue was joined in August 2008 and more than one year has elapsed since joinder of issue. Although claimant did not actually receive 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 the most recent address that he provided to the Court, in accordance with CPLR 2103 (see CPLR 2103 [b][2]; [c]; see also Perez v State of New York, UID # 2008-038-623, Claim No. 107446, Motion No. M-75439, DeBow, J. [Nov. 5, 2008]).
In accordance with CPLR 205 (a), the Court notes that this claim was filed almost four years ago. Claimant's last action in connection with the claim occurred in June 2011 when he notified the Clerk of a change of address. Since then, he has failed to respond to correspondence from the Court dated September 2011, November 2011 and January 2012, has failed to appear for two scheduled telephone conferences with the Court, and has failed to respond to the Court's 90-day demand letter. The Court notes that, pursuant to the Uniform Rules for the Court of Claims § 206.6 (f), claimant was required to apprise the Clerk in writing of any changes in his post office address within ten days of the change. It appears that Claimant has failed to comply with this Rule and, as a result, it is impossible for the Court (or for 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 Claim No. 115608 is dismissed based upon claimant's failure to file and serve a note of issue as demanded.
June 18, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims