KLEINPLATZ v THE STATE OF NEW YORK_ _2003-028-566_ Claim No by leader6

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									KLEINPLATZ v. THE STATE OF NEW YORK, #2003-028-566, Claim No. 104327,
Motion No. M-66883

                                              Synopsis


                                       Case Information

UID:                                 2003-028-566
                                                                     1
Claimant(s):                         JOSEPH S. KLEINPLATZ, M.D.

Claimant short name:                 KLEINPLATZ

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :          The caption of this action is amended sua sponte to reflect the
                                     State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     104327

Motion number(s):                    M-66883

Cross-motion number(s):

Judge:                               RICHARD E. SISE

Claimant’s attorney:                 NATHAN L. DEMBIN & ASSOCIATES, P.C.
                                     BY:     Edward Yun, Esq.
Defendant’s attorney:                HON. ELIOT SPITZER, ATTORNEY GENERAL
                                     BY:     Kathleen M. Resnick, Esq.
                                     Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      September 4, 2003

City:                                Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


1
 The caption of this action is amended sua sponte to reflect the State of New York as the only
properly named defendant.
                                              Decision

The following papers were read on Defendant’s motion to dismiss the Claim:

       1)      Notice of Motion and Affirmation of Assistant Attorney General Kathleen M.
               Resnick (Resnick Affirmation) filed May 30, 2003 with annexed Exhibits A-C;

       Opposition Papers: NONE.


         Filed Papers: Claim, filed May 24, 2001; Answer filed July 5, 2001
         Claimant seeks damages alleging that the State Office of Professional Medical Conduct
obtained his credit report in violation of statute. Defendant has moved to dismiss the Claim
pursuant to CPLR 3216 for failure to prosecute the action. Claimant has not opposed the
application.
         On December 10, 2001, following a preliminary conference held pursuant to 22 NYCRR
§ 206.10, the Court issued a scheduling Order, which required, inter alia, that Claimant file a
Note of Issue and Certificate of Readiness on or before June 28, 2002 (see Resnick Affirmation,
Exhibit A). Claimant did not comply with this directive of the Court. In a February 14, 2003
letter, the Court advised that a Note of Issue was not filed as ordered, inquired as to the status of
the Claim and advised that the failure to file a Note of Issue would result in an Order pursuant to
CPLR 3216. On February 28, 2003 the Court, and the Attorney General, received a facsimile
from Claimant himself indicating that “he would be trying to substitute in counsel over the next
thirty days”(see Resnick Affirmation, Exhibit C).2 On or about March 5, 2003 the Court advised
Claimant’s counsel of record of Claimant’s facsimile and requested that the representation issue
be clarified. Since then, the Court has not been contacted by either Claimant or counsel nor
has a substitution of counsel or a Note of Issue been filed. Against this background, Defendant
has now moved to dismiss the Claim pursuant to CPLR 3216 for failure to prosecute the action.
Claimant has not opposed the application.
         CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals and is
extremely forgiving of litigation delay. “A court cannot dismiss an action for neglect to
prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on
plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed
to serve and file a note of issue within the 90-day period (Baczkowski v D.A. Collins Constr. Co.,
89 NY2d 499, 503). Applying this three part test to the instant facts, the first and third prongs
are satisfied and the Court so finds. As to the second prong, the notice was served upon
Claimant by the Court by first class mail, which, at first blush, does not satisfy CPLR 3216's
certified or registered mail requirement. However, the failure to serve the demand by certified
or registered mail, where, as here, there is actual notice, is a “mere irregularity” and does not
warrant denial of the motion (Balancio v American Optical Corp., 66 NY2d 750, 751; see also
footnote 1, supra). Accordingly, the Court finds that the conditions warranting dismissal for
failure to prosecute are satisfied.

2
      The Court also received a telephone call from Claimant.
      In light of the foregoing, Defendant’s motion to dismiss the Claim for failure to prosecute
is GRANTED and Claim No. 104327, shall be and hereby is dismissed.



                                                                               September 4, 2003
                                                                                Albany, New York

                                                                         HON. RICHARD E. SISE
                                                                      Judge of the Court of Claims

								
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