You are here: / / THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO PROSECUTE DID NOT DESCRIBE...
,

THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO PROSECUTE DID NOT DESCRIBE THE SPECIFIC CONDUCT CONSTITUTING NEGLECT BY THE PLAINTIFF AS REQUIRED BY CPLR 3216; PLAINTIFF’S MOTION TO VACATE THE ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to vacate the order dismissing the complaint for failure to prosecute should have been granted because the conditions required by CPLR 3216 were not met:

A court may not dismiss a complaint for want of prosecution pursuant to CPLR 3216 on its own initiative unless certain conditions precedent have been complied with, including the requirement that “where 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 Supreme Court should have granted the plaintiff’s motion, among other things, to vacate the … order, as that order failed to set forth the specific conduct constituting neglect by the plaintiff … . Wells Fargo Bank, N.A. v Brown, 2020 NY Slip Op 06576, Second Dept 11-12-20

 

You might also like
PLAINTIFF, AN INNOCENT PASSENGER IN THIS TRAFFIC ACCIDENT CASE, WAS ENTITLED TO SUMMARY JUDGMENT DISMISSSING DEFENDANT’S AFFIRMATIVE DEFENSES AS AGAINST HER (SECOND DEPT).
Town Law Applies to Fire District Election
THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​
HERE THE DEFENDANT SELF-STORAGE FACILITY DID NOT NOTIFY PLAINTIFF OF THE CHANGED SALE-DATE AND DISPOSED OF PLAINTIFF’S PROPERTY TO A THIRD PARTY AT THE TIME OF THE SALE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT BASED ON DEFENDANT’S VIOLATION OF THE NOTICE PROVISIONS OF THE LIEN LAW AND DEFENDANT’S SUBSEQUENT CONVERSION OF THE PROPERTY (SECOND DEPT).
QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT).
BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE.
SUPREME COURT SHOULD HAVE CONDUCTED AN INQUIRY TO ENSURE DEFENDANT INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL AFTER HIS ATTORNEY WAS PERMITTED TO WITHDRAW; NEW TRIAL ORDERED (SECOND DEPT).
TRIAL JUDGE ASSUMED THE ROLE OF THE PROSECUTOR AND ELICITED CRUCIAL IDENTIFICATION TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER... PLAINTIFF’S MOTION TO EXTEND THE TIME TO SERVE THE DEFENDANT PURSUANT...