Opinion
# 2013-009-010 Claim No. 112649 Motion No. M-82830
06-07-2013
DELVIN SPEED v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss the claim based upon claimant's failure to prosecute was granted pursuant to Court of Claims Act Section 19(3), based upon the Court's finding that claimant had failed to take any steps to prosecute his claim and had failed to keep the Court apprised of his current address.
Case information
UID: 2013-009-010 Claimant(s): DELVIN SPEED Claimant short name: SPEED Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 112649 Motion number(s): M-82830 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. DELVIN SPEED, PRO SE Claimant's attorney: No Appearance. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: G. Lawrence Dillon, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: June 7, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion seeking an order dismissing the claim based upon claimant's failure to prosecute.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1, 2
In this claim, claimant seeks damages based upon the alleged negligence of the State in maintaining a "dish machine" in the Mess Hall at Mid-State Correctional Facility, resulting in injuries to claimant's right, middle finger on May 19, 2006. Claimant also seeks damages based upon allegations of medical malpractice by medical staff at Mid-State Correctional Facility in the treatment of this injury. The claim was filed with the Clerk of the Court of Claims on August 17, 2006. As set forth in defendant's moving papers, the claim was served upon the Attorney General on August 22, 2006. Furthermore, as set forth in the affirmation submitted in support of this motion, issue was joined when defendant served its Answer on September 22, 2006. This Answer was filed with the Clerk of the Court of Claims on the same day, September 22, 2006.
Defendant now moves to dismiss this claim pursuant to CPLR 3216, which provides the general authority in which a court may dismiss a claim for failure to prosecute. CPLR 3216 sets forth the statutory requirements which must be satisfied: (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 (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]).
Furthermore, pursuant to CPLR 3216, the demand must require "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]).
Service of such a demand is complete upon receipt (see Vasquez v City of New York, 5 AD3d 672 [2d Dept 2004]) except that "[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 563, 565-566 [Ct Cl 2008]).
In this particular matter, on August 16, 2012, defendant served upon claimant, by certified mail, return receipt requested, its demand pursuant to CPLR 3216, addressed to claimant at Mid-State Correctional Facility, P.O. Box 2500, Marcy, New York 13403, claimant's last known address. This mailing was returned to defendant with the notation "Paroled 7-11-12" and the envelope was also stamped "Return to Sender."
On the same date, August 16, 2012, defendant also served its demand upon claimant by regular, first class mail at the same address. This notice was also returned with the same notation of "Paroled 7-11-12" and stamped "Return to Sender - Refused -Unable to Forward."
Based upon the foregoing, the Court finds that defendant has complied with the requirements of CPLR 3216, and that service of its 90-day demand has been properly made pursuant to CPLR 3216 and CPLR 2103 (b) (2).
The Court further finds that claimant has failed to take any action whatsoever to prosecute his claim in response to such notice.
Additionally, the Court notes that the Court's correspondence of January 9, 2013, advising the parties of the return date of this motion, and addressed to claimant at Mid-State Correctional Facility, 9005 Old River Road, P.O. Box 2500, Marcy, NY 13403, was also returned to the Court with the notation "Released 7/11/12" and stamped "Return to Sender - Not Deliverable as Addressed - Unable to Forward." Therefore, the Court further finds that claimant has failed to notify the Clerk of the Court of Claims of his current address as required by the Uniform Rules for the Court of Claims § 206.6 (f).
Based upon the foregoing, the Court finds that claimant has failed to take any appropriate steps to prosecute his claim, and has failed to keep the Court and the defendant aware of his current address. The Court concludes that claimant has neglected and abandoned his claim. Therefore, pursuant to the discretionary authority provided by Court of Claims Act § 19 (3), the Court hereby determines that this claim should be dismissed for failure to prosecute.
Therefore, it is
ORDERED, that Motion No. M-82830 is hereby GRANTED; and it is further
ORDERED, that Claim No. 112649 is hereby DISMISSED.
June 7, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims