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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION FOR NEGLECT TO PROSECUTE WITHOUT MEETING THE REQUIREMENTS OF CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the case for neglect to prosecute in the absence of the prerequisites mandated by CPLR 3216:

… [T]he court directed the plaintiff to file a note of issue within 90 days, and warned that “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court (CPLR 3216).” Five months later … the court, sua sponte, in effect, directed dismissal of the action … . …

“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, as here, a written demand to resume prosecution of the action is made by the court, “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 certification order did not set forth any specific conduct constituting neglect by the plaintiff … .

Additionally, before issuing an order dismissing the case based on a party’s failure to comply with the 90-day demand, the court must give the party notice so that the party has an opportunity to “show a justifiable excuse for the delay and a good and meritorious cause of action” … . Here, the Supreme Court failed to give the parties notice and an opportunity to be heard prior to, in effect, directing dismissal of the action pursuant to CPLR 3216 … . Sadowski v W. David Harmon, 2019 NY Slip Op 02918, Second Dept 4-17-19

 

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