Court's OSC to dismiss for failure to prosecute pursuant to CPLR 3216(e). Claim dismissed.
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Isaac Robinson, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Thomas Trace, Associate Attorney
|Third-party defendant's attorney:|
|Signature date:||August 12, 2019|
|Official citation:||65 Misc 3d 1212(A)|
|See also (multicaptioned case)|
By Order to Show Cause returnable July 10, 2019, the Court ordered Claimant to show cause why his Claim should not be dismissed for failure to resume prosecution.
Claimant's Claim was filed in the Office of the Clerk of the Court on December 26, 2014 and alleges that Claimant was wrongfully confined to the Special Housing Unit. Issue was joined when the State served and filed its Verified Answer on January 29, 2015. On February 13, 2015, Claimant filed a Response to the Verified Answer, dated February 6, 2015. By letter received May 8, 2015, Claimant advised the Court of his new address. By Order of Acting Presiding Judge Richard E. Sise, dated September 28, 2015, this Claim was reassigned from the prisoner pro se calendar to the Individual Assignment Calendar of the undersigned. By letter, dated October 7, 2015, the parties were advised that a Preliminary Conference would be held by telephone on November 12, 2015 at 10:30 a.m. The Court requested that Claimant provide the Court with his daytime telephone number upon receipt of that letter. The correspondence was sent to the address Claimant provided in May 2015. Claimant did not provide the Court with his telephone number and he did not appear at the conference.
Thereafter, the Court sent Claimant correspondence, dated November 19, 2015, by first-class mail and certified mail, return receipt requested. On December 22, 2015, the letter sent by certified mail, return receipt requested, was returned to the Court with the notation "RETURN TO SENDER … UNCLAIMED … UNABLE TO FORWARD." The letter sent by first-class mail was not returned. The Court has not received any correspondence from Claimant in response to its November 19, 2015 letter.
On November 14, 2016, the Court sent Claimant a second letter by certified mail, return receipt requested, and by first-class mail, as stated above, to resume prosecution of the Claim and serve and file a Note of Issue within 90 days of receipt of the correspondence. Again, the letter sent by first-class mail was not returned and the green return receipt card for the letter sent by certified mail was returned to the Court. However, that signature is illegible and undated, and the Court was unable to ascertain if, or when, Claimant received that letter.
Claimant has not been in contact with the Court since May 8, 2015, and the Note of Issue and Certificate of Readiness has yet to be filed. On January 14, 2019, the Court sent to Claimant at his last-known address a letter that set forth the defaults that demonstrated his unreasonable neglect to proceed and demanded that he serve and file the Note of Issue and Certificate of Readiness within 90 days of receiving that letter, pursuant to CPLR 3216(b)(3). On January 24, 2019, the letter sent by certified mail, return receipt requested was returned to the Court and, on January 28, 2019, the letter sent by first-class mail was returned. Both envelopes contained the notation "RETURN TO SENDER … NOT DELIVERABLE AS ADDRESSED … UNABLE TO FORWARD."
On June 10, 2019, the Order to Show Cause the Court sent by certified mail, return receipt requested to Claimant at his last-known address was returned to the Court and, on June 6, 2019, the copy of the Order to Show Cause sent by first-class mail was returned. Both envelopes contained the notation "RETURN TO SENDER … NOT DELIVERABLE AS ADDRESSED … UNABLE TO FORWARD."
Claimant has not responded to the Order to show Cause, has not filed the Note of Issue and Certificate of Readiness, and has not demonstrated any reason for his neglect to prosecute the Claim nor shown justifiable excuse for the delay in serving and filing the Note of Issue and Certificate of Readiness.
Accordingly, and in accordance with CPLR 3216(e), it is
ORDERED, that Claim number 125453 is DISMISSED for want of prosecution.
August 12, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause 1
Letter from Court to Claimant
dated January 14, 2019 1
Filed Papers: Claim, Answer, Response, Order of Transfer