Opinion
# 2013-048-118 Claim No. 111950 Motion No. M-84016
11-19-2013
ELIJAH B. STEVENS v. THE STATE OF NEW YORK
Claimant's attorney: Law Offices of Leon R. Koziol, Esq. By: Leon R. Koziol, Esq. No Appearance Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq. Assistant Attorney General
Synopsis
The Court granted Defendant's motion, pursuant to CPLR 308 (5), and directed alternative service of a CPLR 321 (c) notice on Claimant by both certified mail, return receipt requested and by first class mail, nunc pro tunc.
Case information
UID: 2013-048-118 Claimant(s): ELIJAH B. STEVENS Claimant short name: STEVENS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended to reflect the State of New name) : York as the properly named defendant. Third-party claimant (s): Third-party defendant(s): Claim number(s): 111950 Motion number(s): M-84016 Cross-motion number (s): Judge: Glen T. Bruening Law Offices of Leon R. Koziol, Esq. Claimant's attorney: By: Leon R. Koziol, Esq. No Appearance HON. ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: James Williams, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 19, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Elijah B. Stevens, commenced this action on February 6, 2006, seeking damages for alleged racial discrimination and wrongful retaliation for a grievance filed while an employee at the McPike Addiction Treatment Center (McPike), operated by the New York State Office of Alcoholism and Substance Abuse Services, located in Utica, New York. Claimant was represented by an attorney - Leon R. Koziol - until that attorney was suspended from the practice of law in February 2010 (see Matter of Koziol, 107 AD3d 1137, 1138 [3d Dept 2013], appeal dismissed, lv denied 21 NY3d 1056 [2013] [noting respondent's disciplinary history and suspending respondent from the practice of law for six months, until further order of the Court]; Matter of Koziol, 92 AD3d 1265 [4th Dept 2012] [suspension order lifted]; Matter of Koziol, 76 AD3d 1136 [3d Dept 2010], appeal dismissed 15 NY3d 943 [2010], lv denied 16 NY3d 853 [2011], cert denied ___US ___, 132 SCt 455 [2011] [one-year suspension from practice imposed]; Matter of Koziol, 70 AD3d 1516 [4th Dept 2010], lv dismissed 16 NY3d 853 [2011], cert denied ___ US ___, 132 SCt 455 [2011] [Order of suspension entered]).
In 2006, prior to Attorney Koziol's suspension, the Claim was transferred to the IAS calendar of Court of Claims Judge Norman I. Siegel (see Order, filed July 12, 2006). Defendant thereafter served Claimant's counsel with a Demand for a Verified Bill of Particulars and Discovery Demands (see Defendant's Demand for a Verified Bill of Particulars and Discovery Demands, filed September 13, 2006) . The parties thereafter appeared before Judge Siegel, who issued a Preliminary Conference Scheduling Order on August 10, 2007 (see Preliminary Conference Scheduling Order, dated August 10, 2007). That Scheduling Order required, among other things, that Claimant serve his Bill of Particulars and Response to Defendant's Discovery Demands on or before September 1, 2007. The Claim thereafter remained dormant.
The case was called in for a Calendar Call on March 30, 2011. However, Attorney Koziol had already been suspended from the practice of law.
By Order filed April 19, 2013, this Claim was transferred to the IAS calendar of Court of Claims Judge Glen T. Bruening (see Order, filed April 19, 2013). According to Defendant's counsel, the Attorney General has no record of any communication from either Attorney Koziol's office or Claimant since service of the Claim, and Claimant is no longer employed at McPike. Counsel also affirmed that he spoke with the Director of McPike, who had no other address for Claimant and no other information about any other employer of Claimant.
On September 12, 2013, Defendant's counsel served Claimant with a document entitled "Notices per CPLR Sections 321; 3216 (b); 3042 and 3126" (Notice) by first class and certified mail at the address listed in the Claim - P.O. Box 6012, Syracuse, New York 13217. That document purported to provide Claimant with notice pursuant CPLR 321 (c), which provides:
[i]f an attorney . . . is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.
That Notice also made a demand, pursuant to CPLR 3216 (b), that Claimant serve and file a Note of Issue within 90 days and that Claimant's failure to comply would serve as a basis for the Court to dismiss the Claim for unreasonably neglecting to proceed. The Notice further advised that, pursuant to CPLR 3042 and 3126, based on Claimant's failure to answer the previously served Demand for a Verified Bill of Particulars and Discovery Demands, a motion will be made to preclude from evidence all such material sought by those demands and to dismiss the Claim.
Defendant now moves, ex parte, pursuant to CPLR 308 (5), for an Order, nunc pro tunc as of September 13, 2013, authorizing service of the CPLR 321 demand on Claimant at his address listed in the Claim - P.O. Box 6012, Syracuse, New York 13217 - by first class and certified mail. Defendant also requests that it be permitted to serve the other demands, pursuant to CPLR 3216 (b), 3042 and 3162, on Claimant at that same address by first class and certified mail.
CPLR 321(c) provides that, when an attorney, such as Attorney Koziol, is suspended from the practice of law, the action is automatically stayed until 30 days after notice to appoint another attorney has been served upon that party "either personally or in such manner as the court directs." During that stay, no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party (Moray v Koven & Krause, Esqs., 15 NY3d 384, 389 [2010]).
The most common methods of effectuating personal service upon a natural person include delivery of the document to the person to be served (see CPLR 308 [1]), delivery of the document to a person of suitable age and discretion "at the actual place of business, dwelling place or usual place of abode of the person to be served" and a subsequent mailing of that document to the individual's last known residence or actual place of business (see CPLR 308 [2]), or if service cannot be made "with due diligence" by those methods, it can be accomplished by affixing the document to the door of the individual's "actual place of business, dwelling place or usual place of abode," and by a subsequent mailing to the individual's last known residence or actual place of business (CPLR 308 [4]). However, "CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are impracticable" (Safadjou v Mohammadi, 105 AD3d 1423, 1424 [4th Dept 2013] [internal quotation marks and citations omitted]). Such a showing will depend on the facts of a particular case, but "does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308" (id [internal quotations makes and citations omitted]).
Here, the Court concludes that Defendant has sufficiently shown that service of a CPLR 321 (c) notice on Claimant pursuant to CPLR 308 (1), (2), or (4) is impracticable based on Defendant's lack of a street address - either at Claimant's actual place of business or at Claimant's residence - at which Claimant could be served under those sections. The Notice of Intention to File a Claim attached to the Claim lists Claimant's address as P.O. Box 6012, Syracuse, New York 13217. Accordingly, the Court exercises its discretion and directs alternative service of the CPLR 321 (c) notice on Claimant at P.O. Box 6012, Syracuse, New York 13217 by both certified mail, return receipt requested and by first class mail nunc pro tunc as of September 12, 2013 (see e.g. Morgan Guar. Trust Co. of N.Y. v Hauser, 183 AD2d 683, 684 [1st Dept 1992]). As 30 days have elapsed since Defendant's nunc pro tunc service on the CPLR 321 (c) notice, the automatic stay is lifted, and proceedings with respect to this Claim may continue. Now that the stay of adverse proceedings is hereby lifted, to the extent that Defendant wishes to serve Claimant with any other demands or notices, until Claimant provides the Court and Defendant with a street address, such service shall be made hereafter on Claimant at P.O. Box 6012, Syracuse, New York 13217, in such manner as the applicable statute requires (see e.g. CPLR 3216 [b]; 2103 [c]). Accordingly, based on the foregoing, Defendant's Motion No. M-84016 is granted.
November 19, 2013
Albany, New York
Glen T. Bruening
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim with attached "Notice of Intent to File Claim," filed February 6, 2006;
Answer, filed March 8, 2006;
Order, filed July 12, 2006;
Defendant's Demand for a Verified Bill of Particulars, filed September 13, 2006;
Defendant's Discovery Demands, filed September 13, 2006;
Preliminary Conference Scheduling Order, dated August 10, 2007;
Correspondence from the Court to Leon R. Koziol, Esq. and G. Lawrence Dillon, Esq., dated February 28, 2011;
Order, filed April 19, 2013;
Defendant's "Notices" per Sections CPLR 321, 3216 [b], 3042 and 3126, filed September 16, 2013;
Notice of Motion, filed September 16, 2013;
Affirmation of James Williams, Esq., dated September 16, 2013.