Opinion
# 2017-015-221 Claim No. 123878 Motion No. M-89818
03-28-2017
JOHN ZAYAS v. THE STATE OF NEW YORK
John Zayas, Pro Se No Appearance Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for failure to prosecute was granted. Fact that claimant may not have received the notice served pursuant to CPLR 3216 is no barrier to dismissal where claimant failed to notify the Court and the parties of his change of address.
Case information
| UID: | 2017-015-221 |
| Claimant(s): | JOHN ZAYAS |
| Claimant short name: | ZAYAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123878 |
| Motion number(s): | M-89818 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | John Zayas, Pro Se No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 28, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim for failure to prosecute pursuant to CPLR 3216.
By Decision and Order dated December 8, 2016, defendant's prior motion to dismiss the claim pursuant to CPLR 3216 was denied, with leave to renew, because defendant failed to include in its motion an affidavit of service of the 90-day demand and failed to await the expiration of 90 days before filing its motion.
Claimant, a pro se inmate, filed a claim on February 3, 2014 seeking damages after a mouse was discovered in his cellmate's soup. Following a preliminary telephone conference on August 4, 2015, claimant was directed to file and serve a Note of Issue and Certificate of Readiness for trial no later than August 4, 2016. The note of issue was not filed or served and claimant failed to appear for a telephone conference scheduled for September 7, 2016. On August 29, 2016, defendant served claimant with a demand to resume prosecution of the action and serve and file the Note of Issue within 90 days pursuant to CPLR 3216. The demand was served by certified mail, return receipt requested, at claimant's last known address. The certified letter was returned to the defendant with the notations "Return To Sender", "Unclaimed" and "Unable To Forward." Claimant was required to notify the Clerk of the Court in writing of any change in his post office address within 10 days thereof (see 22 NYCRR § 206.6 [f]). To date, there has been no such notification.
The claimant's failure to serve and file the Note of Issue and Certificate of Readiness within 90 days as demanded, or otherwise move to either vacate the demand or extend his time to file the Note of Issue, requires that the claim be dismissed for failure to prosecute (CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504 [1997]; Ofiara v Nike, Inc., 21 AD3d 686 [3d Dept 2005], lv denied 5 NY3d 717 [2005]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2d Dept 2002], lv denied 100 NY2d 502 [2003]). Inasmuch as claimant was required to communicate changes in his post office address in writing to the Clerk within 10 days thereof, the fact that he may not have received the 90-day demand is inconsequential (see 22 NYCRR § 206.6 [f]).
Defense counsel indicates that the 90-day demand was also served by regular mail on August 29, 2016, which was not returned.
Moreover, in light of claimant's failure to take any steps to prosecute this claim and to keep the Court and the defendant apprised of his current address, the Court finds that the claimant has neglected and abandoned his claim thereby warranting the Court's exercise of its "wholly discretionary" authority to dismiss the claim for failure to prosecute pursuant to Court of Claims Act § 19 (3) (Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]; Randolph v State of New York, UID No. 2013-009-005 [Ct Cl, Midey, J., April 3, 2013]).
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
March 28, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated January 24, 2017; 2. Affirmation of Christina Calabrese dated January 24, 2017 with exhibits.