Claim dismissed for failure to prosecute pursuant to CCA § 15 & CPLR § 1021 as no representation of Claimant's Estate has been appointed and substituted to prosecute this action.
|Claimant(s):||JAMES ANDERSON, DIN# 10-A-1818|
|Claimant short name:||ANDERSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Christopher J. Kalil, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 18, 2021|
|See also (multicaptioned case)|
By Order to Show Cause, dated April 29, 2021 and returnable on July 14, 2021, the Court directed that those persons interested in the Estate of Claimant, James Anderson, to wit, Harley J. Anderson, his son and only next of kin, show cause why the Claim should not be dismissed, as more than three (3) years had passed since Claimant's death and there had been no substitution by a representative of his estate to prosecute the action.
The Claim, which was filed by Claimant pro se, in the office of the Clerk of the Court on October 5, 2012, asserts that, while incarcerated at Mid-State Correctional Facility, Claimant was assaulted on February 16, 2011, after exiting the gymnasium. The Claim asserts that Claimant was assaulted between Guard Posts 1 and 2, as there were no correction officers stationed at those posts.
By Order of Acting Presiding Judge Richard E. Sise, dated June 20, 2019, the Claim was reassigned to the undersigned from the calendar of Judge Nicholas V. Midey, Jr. Shortly thereafter, the Court sent correspondence, dated July 11, 2019, establishing a telephone conference with the parties for July 25, 2019. At that conference, the Court was advised by the parties that they would attempt to resolve several issues raised in Claimant's Motion M-91769. The Court scheduled another conference call for September 24, 2019 at 11:00 a.m. At the September 24, 2019 conference, Claimant's counsel, Michael J. Crosby, Esq., advised the Court that he had reason to believe that Claimant had passed away. Counsel stated that he would attempt to ascertain Claimant's status. The Court scheduled another conference call for December 3, 2019 at 11:30 a.m. By correspondence, dated November 19, 2019, Mr. Crosby forwarded the Court a copy of Claimant's death certificate, which states that Claimant died on December 14, 2017. At the December 3, 2019 conference, Mr. Crosby advised the Court that he had spoken to Claimant's son and next of kin, Harley Anderson, and that Mr. Anderson was not interested in continuing to prosecute the matter. Counsel further stated that he would attempt to have Mr. Anderson advise the Court of the above in writing. By correspondence, dated December 3, 2019 and addressed to Harley J. Anderson, Mr. Crosby advised of that day's Court conference and requested that Mr. Anderson send a letter to the Court stating that he was not interested in pursuing his father's Claim. The Court has not received any correspondence from Mr. Anderson.
Court of Claims Act § 15 provides:
In the event of the death of the claimant or of one of the claimants named in a claim of any nature against the state, heretofore or hereafter filed in the court of claims, and also in the event that by assignment or by operation of law, some person other than the claimant named in the claim has succeeded to the interest of one of the claimants named in such a claim, it shall be the duty of the personal representative of said claimant or of the person who succeeded claimant in interest to said claim or any interest therein within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim, to whose right, title and interest he has succeeded, and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, to all parties who have appeared in said action or proceeding or to the assignee or successor of the claimant may dismiss said claim.
The Court has not received any response to its Order to Show Cause from Claimant's son or from Claimant's former counsel, Mr. Crosby. Defense Counsel, Mr. Kalil, established that he served the Order to Show Cause upon both Mr. Anderson and Mr. Crosby by both certified mail, return receipt requested, and by first-class mail, and that the United States Postal Service returned only the correspondence addressed to Mr. Anderson sent by certified mail, return receipt requested, with a printed label with the notation, "RETURN TO SENDER ... UNCLAIMED ... UNABLE TO FORWARD."
Therefore, based upon: (1) the fact that more than three and a half years now have passed since Claimant's demise without substitution by a representative of his Estate, and (2) the indication to Mr. Crosby from Mr. Harley Anderson was that he would not be prosecuting this Claim, it is hereby
ORDERED that the Claim be and hereby is dismissed for failure to substitute and prosecute the action pursuant to Court of Claims Act § 15 (see also CPLR § 1021).
August 18, 2021
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
Defendant's Proof of Service of the
Order to Show Cause 2
Filed papers: Claim, Answer