New York State Court of Claims

New York State Court of Claims
MOSBY v. STATE OF NEW YORK, # 2021-040-025, Claim No. 121105, Motion No. M-96720


State's Motion to dismiss based upon Claimant's failure to prosecute granted.

Case information

UID: 2021-040-025
Claimant short name: MOSBY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121105
Motion number(s): M-96720
Cross-motion number(s):
Claimant's attorney: Malik Az'Rael Mosby, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Thomas Trace, Senior Attorney
Third-party defendant's attorney:
Signature date: June 30, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, Defendant's Motion to dismiss this pro se Claim pursuant to CPLR 3216 for failure to prosecute is granted.

This Claim, which was filed in the Office of the Clerk of the Court on March 29, 2012, alleges that Claimant sustained injuries as a result of alleged negligent supervision of inmates at Gouverneur Correctional Facility, and a resultant assault upon Claimant on April 16, 2011.

Claimant, appearing pro se at that time, served the Claim upon the Office of the Attorney General (hereinafter, "OAG") on March 29, 2012, and issue was joined when the State served its Verified Answer upon Claimant on April 6, 2012 (Affirmation of Thomas Trace, Esq. [hereinafter, "Trace Affirmation"], 3, & Exs. A and B attached) and filed it with the Clerk of the Court on the same date.

A Notice of Appearance was filed in the Office of the Clerk of the Court on October 5, 2015 by Luciano L. Lama, Esq. On September 21, 2016, the Court "So Ordered" a Preliminary Conference Order (hereinafter, "PCO") directing the parties to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness on or before February 1, 2017. A copy of the PCO was sent to Claimant's then-lawyer, Mr. Lama, and Defense counsel, Thomas Trace, Esq., Associate Attorney. There were some issues completing discovery and Claimant served and filed a Note of Issue and Certificate of Readiness on December 14, 2018. By Order dated January 29, 2019, the Court scheduled a one-day trial on liability issues to be held on October 10, 2019 at the Court of Claims in Utica, New York.

On July 10, 2019, Mr. Lama submitted an Order to Show Cause to withdraw as counsel which the Court signed on July 16, 2019, making the Motion to Withdraw returnable on September 11, 2019.

By Decision and Order, dated September 12, 2019 (Mosby v State of New York, UID No. 2019-040-092 [Ct Cl, McCarthy, J., Sept. 12, 2019]), the Court noted that Mr. Lama asserted that: "recently, differences have developed between Claimant and counsel that make it impossible for counsel to continue representing Claimant in this matter (Lama Affirmation, 5, 7, 8, 9). In addition, counsel provided the Court with an In Camera Affirmation, in which he particularized his reasons for seeking withdrawal. In view of legal and ethical constraints imposed upon him, counsel did not particularize the reasons in his Motion papers." The Court noted that Claimant did not raise any objection to Mr. Lama's withdrawal. The Court granted the Motion, allowing Mr. Lama to withdraw as Claimant's lawyer and directing Claimant to advise the Court by March 15, 2020 if he obtained new counsel, was proceeding pro se, or wished to withdraw the Claim, and adjourned the October 10, 2019 trial without date (Mosby v State of New York, supra).

Defendant states that, on December 31, 2020, it served Claimant with a 90-day Demand to File a Note of Issue (hereinafter, "Demand"), by both regular, first-class and certified mail, return receipt requested, sent to Claimant at 910 West State Street, Ithaca, New York 14850 (Trace Affirmation, 4, & Exs. C and D attached). This is the address the Court has in its records for Claimant. The Demand specified that a motion to dismiss the Claim for unreasonably neglecting to proceed would result if Claimant failed to comply. Neither the Demand sent by certified mail, return receipt requested, nor the one sent by regular, first-class mail, was returned to Defendant by the postal service (id., 4). Defendant submitted a printout from the U.S. Postal Service website, showing that the Demand served by certified mail, return receipt requested (tracking number 70102780000217117118) was delivered and "Left with Individual" on January 6, 2021 at 11:40 a.m. (USPS Tracking receipt).

CPLR 3216 provides the general authority to dismiss a Claim for failure to prosecute. In order to do so, all the statutory requirements for dismissal must be met: (1) issue must have been joined; (2) one year must have elapsed since the joinder of issue; and (3) a written demand must be served upon the party by certified or registered mail (CPLR 3216; Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1977]). Service is complete when the demand is received (Indemnity Ins. Co. v Lamendola, 261 AD2d 580, 582 [2d Dept 1999]). When the demand is not received due to, for instance, the failure to keep the parties and the Court apprised of a change of address, then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361, 361 [2d Dept 1986]; Holman v State of New York, UID No. 2006-018-517 [Ct Cl, Fitzpatrick, J., May 10, 2006]). If the letter is not returned by the U.S. Postal Service, it is presumed that it has been received (Allen v State of New York, UID No. 2007-040-039 [Ct Cl, Milano, J., Aug. 29, 2007]; see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]). In addition, pursuant to Section 206.6(f) of the Uniform Rules for the Court of Claims, changes in the address or telephone number of any attorney or pro se claimant shall be communicated in writing to the Clerk of the Court within ten (10) days of the change. Here, all of the conditions have been met.

Claimant has not responded to the Motion, 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 121105 is DISMISSED for want of prosecution.

June 30, 2021

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support,

and Exhibits Attached 1

U.S. Postal Service tracking receipt 2

Filed Papers: Claim, Answer