Young v. Dillon

Full title: HARVEY YOUNG v. STATE OF NEW YORK ERIC T. SCHNEIDERMAN Attorney General of…

Court: New York State Court of Claims

Date published: Apr 18, 2014

# 2014-018-513 (N.Y. Ct. Cl. Apr. 18, 2014)

Opinion

# 2014-018-513 Claim No. 113307 Motion No. M-84598

04-18-2014

HARVEY YOUNG v. STATE OF NEW YORK ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General

No Appearance

DIANE L. FITZPATRICK

Synopsis

Defendant has satisfied all of the conditions precedent for dismissal of the claim for failure to prosecute pursuant to CPLR 3216, and the claim is DISMISSED.

Case information

UID:	2014-018-513
Claimant(s):	HARVEY YOUNG
Claimant short name:	YOUNG
Footnote (claimant name) :
Defendant(s):	STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	113307
Motion number(s):	M-84598
Cross-motion number(s):
Judge:	DIANE L. FITZPATRICK
Claimant's attorney:	No Appearance
Defendant's attorney:
Third-party defendant's attorney:
Signature date:
City:	Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant brings a motion to dismiss for failure to prosecute pursuant to CPLR 3216. Claimant has not responded to this motion. A copy of the motion was sent to Claimant by regular mail at his last known address. This Court denied, without prejudice, a prior motion seeking the same relief (M-82832) on April 4, 2013, to allow Defendant to provide service upon Claimant at the last address he provided to the Clerk of the Court (see Uniform Rules for the Court of Claims [22 NYCRR ?206.6 (f)]).

The claim was filed on February 8, 2007, seeking damages for dental malpractice. Defendant interposed a verified answer, filed on March 8, 2007.

Defendant now affirms that on May 2, 2013, a demand to file a note of issue was sent to Claimant by certified mail, return receipt requested, to Claimant's last known address at: 1295 5^th Avenue, Apartment 27D, New York, New York 10029. The demand was returned to Defendant on May 13, 2013, as delivery was attempted at that address, without receipt. On May 2, 2013, the demand to file a note of issue was also served upon the Claimant by regular, first class mail, addressed to Claimant at that same address. The document was not returned.

Defendant, by this motion, indicates that Claimant was released from State custody on June 25, 2007, to parole supervision. He was discharged from parole supervision on November 9, 2008. Pursuant to the Uniform Rules for the Court of Claims [22 NYCRR] ?206.6 (f), any changes in the post office address of a pro se claimant shall be communicated in writing to the Clerk of the Court within ten days. On June 11, 2007, Claimant wrote to the Clerk of the Court of Claims and provided a home address where correspondence could be forwarded to him after his release from prison: Harvey Young, 1295 5^th Avenue, Apt. # 27D, New York, NY 10029. There has been no further action or communication by Claimant on this claim.

CPLR 3216 provides in part:

"(a) [w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms."

No dismissal may be directed under CPLR 3216, however, unless three conditions have been met: (1) issue has been joined; (2) one year has elapsed from the joinder of issue; and (3) the court or party seeking dismissal of the action under this section shall have served a written demand by registered or certified mail requiring the party against whom the relief is sought to resume prosecution of the action and serve and file a note of issue within ninety days of receipt of the written demand, with notice that the failure to comply with the demand may serve as a basis for the dismissal of the action for failure to prosecute (CPLR 3216 [b] [1]-[3]).

Although Defendant has not established proof of Claimant's receipt of the demand to file a note of issue, with evidence of a signed receipt card, Defendant has affirmed that a copy of the demand was properly sent to Claimant by regular mail, and it was not returned by the U. S. Post Office to Defendant. This creates a presumption that the demand was received by Claimant (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]). Accordingly, Defendant has satisfied all of the conditions precedent for dismissal of the claim for failure to prosecute pursuant to CPLR 3216. The Court of Claims has the authority to dismiss a claim for failure to prosecute (Court of Claims Act ?9 [3]). No note of issue has been filed by Claimant, and he has not come forward to show a justifiable excuse and meritorious claim.

Accordingly, Defendant's motion is GRANTED and the claim is DISMISSED.

April 18, 2014

Syracuse, New York

DIANE L. FITZPATRICK

Judge of the Court of Claims

The Court has considered the following in deciding this motion:

1) Notice of Motion.

2) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in support with exhibits attached thereto.