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STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statutory criteria in CPLR 3216 were not met and the court should not have dismissed the action for neglect to prosecute:

The Supreme Court issued a compliance conference order dated December 3, 2014, directing the plaintiff to serve and file a note of issue on or before May 15, 2015, and warning that the failure to do so “shall result in dismissal of the action for unreasonably neglecting to proceed, without further notice.” …

“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . “Effective January 1, 2015, the Legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216” … . One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Here, the compliance conference order did not set forth any specific conduct constituting neglect by the plaintiff. Accordingly, since one of the statutory preconditions to dismissal was not met, the court should not have directed dismissal of the complaint pursuant to CPLR 3216 … . Goetz v Public Serv. Truck Renting, Inc., 2018 NY Slip Op 04534, Second Dept 6-20-18

​CIVIL PROCEDURE (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))/CPLR 3216 (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))/NEGLECT TO PROSECUTE (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))

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