The claim was dismissed for failure to prosecute pursuant to CPLR 3216 and Court of Claims Act § 19.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 10, 2019|
|See also (multicaptioned case)|
On the Court's own motion, the claim is dismissed pursuant to CPLR 3216.
On July 25, 2016 claimant, a pro se inmate, filed a claim seeking damages for injuries sustained during the course of weight lifting at Franklin Correctional Facility on May 12, 2016. Pursuant to a preliminary telephone conference on October 26, 2017, an Order was issued directing claimant to file and serve a Note of Issue and Certificate of Readiness for trial no later than July 30, 2018. Having failed to file and serve the Note of Issue by the date set forth in the Order, on January 11, 2019 the Court served claimant with a demand to resume prosecution of this action and to serve and file the Note of Issue within 90 days pursuant to CPLR 3216. The demand was served on the claimant by certified mail, return receipt requested, at his last known address but was returned 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 changes in his post office address within 10 days thereof (see 22 NYCRR § 206.6 [f]). Review of the Court file reflects that no such notification has been received since the claimant's address was last updated shortly after his release from prison.
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 serve and 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 ; Ofiara v Nike, Inc., 21 AD3d 686 [3d Dept 2005], lv denied 5 NY3d 717 ; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2d Dept 2002], lv denied 100 NY2d 502 ). 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]; Farias v State of New York, 21 Misc 3d 563 [Ct Cl, 2008]).
Moreover, in light of claimant's failure to take any steps to prosecute his claim and 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 The State of New York, Ct Cl, April 3, 2013, Midey, J., claim No. 116908, UID No. 2013-009-005).
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
May 10, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims