Opinion
# 2013-048-097 Claim No. 108844 Motion No. M-82862
06-03-2013
CLARENCE PEARL v. THE STATE OF NEW YORK
Synopsis
The Court granted Defendant's motion to dismiss the Claim for failure to prosecute.
Case information
UID: 2013-048-097 Claimant(s): CLARENCE PEARL Claimant short name: PEARL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 108844 Motion number(s): M-82862 Cross-motion number(s): Judge: GLEN T. BRUENING CLARENCE PEARL, Pro Se Claimant's attorney: No Appearance HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Paul F. Cagino, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: June 3, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Clarence Pearl, commenced this action sounding in negligent bailment alleging that Defendant is responsible for the loss of certain personal property stemming from Claimant's transfer from Ulster Correctional Facility to Ogdensburg Correctional Facility in April 2003, while Claimant was an inmate under the supervision of the Department of Correctional Services (DOCS). Defendant now moves the Court for an order dismissing the Claim pursuant to CPLR 3216 based upon Claimant's alleged failure to prosecute the Claim. Claimant does not oppose the motion.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim makes allegations of violations that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
CPLR 3216 authorizes the Court to dismiss a Claim for a claimant's failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a proper written demand to resume prosecution and serve and file a note of issue has been served upon the claimant by certified or registered mail (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]).
The record before the Court reveals that, by Decision and Order filed December 29, 2003, Claimant received permission to file a late claim (see Pearl v State of New York, Ct Cl, Dec. 12, 2003, Lack, J. [Motion No. M-67452]). The Claim was filed on January 29, 2004, and issue was joined by Answer served and filed January 6, 2004. Claimant thereafter moved seeking dismissal of Defendant's affirmative defenses. By Decision and Order filed July 9, 2004, Claimant's motion was denied (see Pearl v State of New York, UID No. 2004-033-066 [Ct Cl, Lack, J., June 29, 2004]). Claimant served Defendant with a "Request for Admissions" dated August 29, 2004, and Defendant served its response on October 8, 2004. After issue was joined, various correspondence was received from Claimant by the Court and, by letter received June 7, 2006, Claimant provided the Clerk of the Court of Claims with a new address at Coxsackie Correctional Facility (Coxsackie), located in Coxsackie, New York. No further communication was thereafter received from Claimant by the Court, and the Claim thereafter remained dormant.
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."
According to Defendant, Claimant was released from DOCS custody at Sing Sing Correctional Facility (Sing Sing) to the Division of Parole (Parole) on or about January 10, 2008 (see Affirmation of Paul F. Cagino, Esq., ¶ 6 and Exhibit C). Claimant failed to notify this Court of his transfer to Sing Sing and his release from that facility. Defendant affirms that Claimant was discharged from Parole supervision on or about July 16, 2009, and that Claimant's last address known to Parole is 1009 Van Buren Street, Uniondale, New York 11553 (seeAffirmation of Paul F. Cagino, Esq., ¶ 7 and Exhibit D). On June 18, 2009, Defendant's counsel served Claimant at this address with a demand made pursuant to CPLR 3216, by both certified and first class mail (see Affirmation of Paul F. Cagino, Esq., ¶ 8 and Exhibit E). Defendant's counsel further affirms that, while the CPLR 3216 demand served on Claimant by certified mail was returned by the US Post Office as unclaimed, the CPLR 3216 demand served by regular mail was not returned (see Affirmation of Paul F. Cagino, Esq., ¶¶ 9 and 10).
In light of Claimant's failure to communicate with the Court about his Claim after June 2006, especially his failure to notify the Clerk of his address and telephone number after he was released from State custody in January 2008, the Court concludes that Claimant has unreasonably neglected his Claim. Similarly, Claimant's failure to respond in any fashion to Defendant's demand pursuant to CPLR 3216 demonstrates not only neglect and a pattern of delay, but an abandonment of the Claim, warranting dismissal pursuant to CPLR 3216 (see Dickan v State of New York, 16 AD3d 760 [3d Dept 2005]; CPLR 205 [a]).
Finally, the Court further concludes that Claimant's neglect to prosecute also warrants dismissal of the Claim pursuant to Court of Claims Act § 19 (3) (see Shabazz v State of New York, 191 AD2d 832 [3d Dept 1993], lv dismissed, lv denied 82 NY2d 736 [1993], cert denied 511 US 1094 [1994]; Scheckter v State of New York, 57 Misc 2d 722 [Ct Cl 1968], affd 33 AD2d 1075 [3d Dept 1970]).
Accordingly, Defendant's Motion No. M-82862 is granted and the Claim is dismissed.
June 3, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed January 29, 2004, with Affidavit in Support of Application Pursuant to CPLR 1101 (f) attachments consisting of 27 pages;
Correspondence from Claimant, dated January 5, 2004;
Answer, filed January 6, 2004;
Correspondence from Claimant, received June 30, 2004;
Claimant's Request for Admissions, filed September 2, 2004;
Defendant's Response to Request for Admissions, filed October 8, 2004;
Correspondence from Claimant, received January 21, 2005;
Correspondence from Claimant, received September 12, 2005;
Correspondence from Claimant, received June 7, 2006;
Demand to File a Note of Issue, filed June 18, 2009;
Notice of Motion, filed January 14, 2013;
Affirmation of Paul F. Cagino, Esq., dated January 10, 2013, with Exhibits A-E.