New York State Court of Claims

New York State Court of Claims
CONCEPCION v. THE STATE OF NEW YORK, # 2018-032-062, Claim No. 123390, Motion No. M-92163


Defendant's motion to dismiss for failure to prosecute pursuant to CPLR 3216 denied, as demand omitted a phrase that is required by statute to be included in the demand.

Case information

UID: 2018-032-062
Claimant short name: CONCEPCION
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123390
Motion number(s): M-92163
Cross-motion number(s):
Claimant's attorney: Luis Concepcion, Pro Se
Defendant's attorney: Hon. Barbara D. Underwood, Attorney General
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 1, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant filed the instant claim on October 24, 2013, seeking damages for injuries sustained when he tripped and fell after stepping in a hole located on a walkway at Altona Correctional Facility. Following a telephone conference with counsel for both parties, the Court issued a Scheduling Order, dated January 30, 2014, ordering that claimant file a Note of Issue by September 17, 2014. A Note of Issue was not filed as directed. Thereafter, the Court issued an Order, dated October 22, 2014, ordering claimant to file a Note of Issue and Certificate of Readiness and resume prosecution of the claim within 90 days. By letter dated February 5, 2015, counsel for claimant requested an extension of time to complete discovery. The Court, by letter dated February 6, 2015, granted claimant's request, ordered that all discovery be completed by July 30, 2015, and ordered that a Note of Issue and Certificate of Readiness be filed by October 31, 2015. On October 30, 2015, counsel for claimant again requested an extension of time to complete discovery. By letter dated October 30, 2015, the Court granted claimant's request and ordered that a Note of Issue be filed by December 1, 2015. By letter dated November 20, 2015, counsel for defendant informed the Court that the parties were not able to complete claimant's deposition due to claimant's incarceration on criminal charges and requested an extension of time to complete discovery. By letter dated November 23, 2015, counsel for claimant joined defendant's request for an extension of the time to complete discovery. Thereafter, the Court scheduled telephone conferences on February 8, 2016 and May 9, 2016 to discuss the status of the claim and whether claimant intended to proceed with the claim. At a further telephone conference on December 1, 2016, counsel for claimant informed the Court that claimant had not responded to counsel's attempts to contact him since November 2014 and that counsel for claimant would make a motion to withdraw as counsel. Claimant moved to withdraw as counsel for claimant by an Order to Show Cause signed by the Court on March 20, 2017. By Decision and Order dated July 28, 2017, the Court granted the motion and permitted claimant's counsel to withdraw. The Decision and Order stayed all proceedings in this claim for 60 days after the filing date of the Decision and Order. Claimant was advised that, if no appearance of counsel was filed on his behalf, he would be deemed to appear pro se. Counsel for claimant timely served a copy of the Court's Decision and Order on claimant. To date, no appearance of counsel has been filed on behalf of claimant.

On November 22, 2017, counsel for defendant filed and served upon claimant a demand to file a Note of Issue within 90 days. Counsel for defendant properly served the demand by certified mail, return receipt requested (see Wagner Aff. Exhibit E). Claimant failed to file a Note of Issue and defendant now moves to dismiss the claim for failure to prosecute pursuant to CPLR 3216. Claimant has not responded to the motion.

The general authority to dismiss a claim for failure to prosecute is set forth in CPLR 3216, which sets forth the following requirements: (1) issue must have been joined; (2) one year must have elapsed since issue was joined; and (3) a written demand must be served upon the party 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 after receipt of that demand, and that the failure to do so will serve as a basis for a motion to dismiss for unreasonably neglecting to proceed.

Here, the first two conditions have been met as defendant filed and served its verified answer on or about December 3, 2013. However, the demand served upon claimant by defendant omits the statutorily required phrase that claimant must "resume prosecution of the action" (Wagner Aff. Exhibit D; see CPLR 3216 [b] [3]). Inasmuch as "CPLR 3216 is a legislative creation and not part of the court's inherent power . . . the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action" (Wasif v Khan, 82 AD3d 1084, 1084-1085 [2d Dept. 2011] [internal citations omitted]). Accordingly, the Court is constrained to find that the conditions precedent set forth in CPLR 3216 have not been met (Butler v State of New York, UID No. 2016-038-548 [Ct Cl, DeBow, J., July 28, 2016] [denying dismissal motion where defendant's notice omitted the phrase "resume prosecution of the action"]; Farrell v State of New York, UID No. 2016-040-051 [Ct Cl, McCarthy, J., July 26, 2016] [denying dismissal motion where defendant's notice did not state that claimant was "to resume prosecution of the action"]; McDonald v State of New York, UID No. 2010-039-161 [Ct Cl, Ferreira, J., Jan. 22, 2010] [denying dismissal motion where defendant's notice failed to state that claimant was to file and serve a note of issue]).

Based upon the foregoing, it is hereby

ORDERED that defendant's motion to dismiss the claim (M-92163) is denied.

October 1, 2018

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Verified Claim, filed on October 24, 2013.

2. Notice of Motion, dated April 23, 2018; and Affirmation in Support of Motion to Dismiss, affirmed by Belinda A. Wagner, AAG on April 23, 2018, with Exhibits A through E annexed thereto.