The State's motion to dismiss the pro se incarcerated individual's claim for failure to prosecute is granted.
|Claimant short name:||MUSHEYEV|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DMITRIY MUSHEYEV, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2021|
|See also (multicaptioned case)|
Claimant, a former incarcerated individual, seeks to recover for an alleged assault at Gowanda Correctional Facility on January 3, 2018. Mr. Musheyev alleges that he was punched in the face from behind in a stairwell by an unknown assailant. According to claimant, he was seen at an outside hospital on January 4, 2018 where an X-ray confirmed that his jaw was broken. Claimant was allegedly transported to another hospital where his jaw was wired shut.
On May 17, 2018, claimant filed his pro se claim with the Clerk of the Court of Claims. Claimant served the Attorney General's Office on or about May 18, 2018. In his claim, he asserts that the Department of Corrections and Community Supervision (DOCCS) was negligent in failing to protect him and to properly supervise the stairwell where he was injured. According to claimant, because the stairwell has blind spots and it was not properly supervised, the attack upon him was reasonably foreseeable. Defendant filed its answer to the claim on June 25, 2018.
Now before the Court is defendant's motion to dismiss the claim for failure to prosecute pursuant to CPLR 3216. For reasons stated below, the Court will grant the motion.
CPLR 3216 provides that where at least one year has elapsed since issue has been joined, a party may serve a written demand by registered or certified mail demanding that another party resume prosecution of the action, and serve and file a note of issue within 90 days. In March 2020, more than one year after issue had been joined, defendant served a demand to resume prosecution of this claim via certified mail, return receipt requested upon claimant at his last known address at Otisville Correctional Facility (see Affirmation of Darren Longo, dated August 24, 2021 [Longo affirmation], exhibit C [demand to resume prosecution] and D [certified mail return receipt]). On March 30, 2020, the demand was signed for by an individual at Otisville Correctional Facility other than claimant (id.). Claimant had been released from DOCCS custody nearly a year before on May 3, 2019 (see Longo affirmation, exhibit E [printout of DOCCS inmate lookup information for claimant]).
Claimant failed to provide the Clerk's Office with an updated address when he was released from DOCCS custody. The rules governing practice in the Court of Claims provide that "[c]hanges in the post office address" of a "pro se claimant shall be communicated in writing to the clerk within 10 days" (22 NYCRR 206.6 [f]). The Court has not had any communication with claimant since he was released from DOCCS custody more than two and a half years ago. Claimant similarly failed to provide defendant with an updated mailing address when he was released from DOCCS custody (see Longo affirmation, para 13). Claimant has not responded to either defendant's demand that he resume prosecution of this claim or defendant's motion to dismiss, which were both served as this last known address at Otisville Correctional Facility.
The Court has discretion to dismiss claims for failure to appear or prosecute (see Court of Claims Act § 19 ; Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]). The Court finds that claimant's failure to update his address with the Clerk's Office as required by 22 NYCRR 206.6 (f), and his failure to communicate with defendant or the Court over a more than two and a half year period indicates that he has neglected and abandoned his claim. The Court will exercise its discretion and dismiss the claim for failure to prosecute pursuant to Court of Claims Act § 19 (3). Based upon the above, it is hereby
ORDERED, that defendant's motion is granted and claim no. 131447 is dismissed.
December 7, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of Motion, dated August 24, 2021, filed August 27, 2021; and
2. Affirmation of Darren Longo, dated August 24, 2021, with attached exhibits.