Motion to dismiss claim for failure to prosecute was denied as the 90-day demand was not sent to the claimant at his last known address as he had returned to prison.
|Claimant(s):||JAMEL BROWN, 91A9658|
|Claimant short name:||BROWN|
|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:||December 31, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3216 for failure to prosecute.
Claimant, a pro se inmate, seeks damages for various assaults and instances of harassment by correction staff at both Great Meadow Correctional Facility and Clinton Correctional Facility. Following claimant's release from prison, this claim was transferred to the undersigned on June 8, 2018 and a preliminary conference Order was issued on July 10, 2018. The order required that the claimant file and serve a Note of Issue and Certificate of Readiness for trial on or before January 10, 2019. The preliminary conference Order was sent to the claimant at a post office box in Baltimore Maryland, his last known address then on file. On July 24, 2018, claimant notified the Court of his new address in New York City and on January 30, 2019, the Court served claimant with a 90-day demand to serve and file the Note of Issue and Certificate of Readiness for Trial. However, in the interim, on December 20, 2018, claimant notified the Court of his return to prison. Unfortunately, the court's records were not updated and the 90-day demand was not sent to the claimant at his last known address.(1) Thereafter, by Order of Transfer dated June 3, 2019, this matter was returned to the prisoner pro se calendar and claimant was notified that the trial of this matter will be held by remote video conference in the near future. Inasmuch as it appears the 90-day demand was not sent to the claimant at his last known address, dismissal of the claim pursuant to CPLR 3216 would be inappropriate. Moreover, this matter has now been returned to the prisoner pro se calendar thereby rendering the filing of a Note of Issue and Certificate of Readiness for Trial unnecessary (22 NYCRR § 206.12 [a]).
Accordingly, defendant's motion is denied.
December 31, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. In addition, although the court's records now reflect claimant address as Attica Correctional Facility, the letter notifying the Court of this address change is not in the file.