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INDICATING INCONSISTENT DECISIONS SHOULD NO LONGER BE FOLLOWED, THE SECOND DEPT DETERMINED SUPREME COURT COULD NOT DISMISS A CASE BASED ON THE FAILURE TO FILE A NOTE OF ISSUE WITHIN 90 DAYS OF THE COURT’S ORDER UNLESS THE STATUTORY REQUIREMENTS OF CPLR 3216 ARE COMPLIED WITH (SECOND DEPT).

The Second Department, reversing Supreme Court and departing from precedent, determined that, because the court had not complied with CPLR 3216, the action had never been dismissed and plaintiff’s very late (three years) motion to restore the matter to calendar should have been granted. In January 2013 the court certified the matter ready for trial and directed plaintiff to file a note of issue within 90 days in an order which stated the failure to file the note of issue will result in dismissal without further order. Plaintiff moved to restore the matter in January, 2016:

… [T]he court order which purported to serve as a 90-day notice pursuant to CPLR 3216 “was defective in that it failed to state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion’ by the court to dismiss the action for failure to prosecute”… . Moreover, the record contains no evidence that the court ever made a motion to dismiss, or that there was an “order” of the court dismissing the case … , “[i]t is evident from this record that the case was ministerially dismissed,” without the court having made a motion, and “without the entry of any formal order by the court dismissing the matter” … . The procedural device of dismissing an action for failure to prosecute is a legislative creation, not a part of a court’s inherent power … , and, therefore, a court desiring to dismiss an action based upon the plaintiff’s failure to prosecute must follow the statutory preconditions under CPLR 3216.

Since the action was not properly dismissed pursuant to CPLR 3216, the Supreme Court should have granted that branch of the plaintiff’s motion which was to restore the action to the active calendar. To the extent that prior cases from this Court are inconsistent with the holding herein (see e.g. Stroll v Long Is. Jewish Med. Ctr., 151 AD3d 789; Duranti v Dream Works Constr., Inc., 139 AD3d 1000, 1000; Bender v Autism Speaks, Inc., 139 AD3d 989; Dai Mang Kim v Hwak Yung Kim, 118 AD3d 661, 661; Bhatti v Empire Realty Assoc., Inc., 101 AD3d 1066, 1067), henceforth they should no longer be followed. Element E, LLC v Allyson Enters., Inc., 2018 NY Slip Op 08915, Second Dept 12-26-18

 

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