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THE 2019 MOTION TO RESTORE THE ACTION TO ACTIVE STATUS AFTER THE NOTE OF ISSUE WAS VACATED IN 2012 SHOULD HAVE BEEN GRANTED; LACHES DOES NOT APPLY WHERE THERE HAS BEEN NO SERVICE OF A 90-DAY DEMAND PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the traffic accident action to active status in 2019 after the note of issue had been vacated in 2012 should have been granted. The doctrine of laches does not apply where there has been not service of a 90-day demand pursuant to CPLR 3216:

CPLR 3404 does not apply to this pre-note of issue action … . Further, there was neither a 90-day demand pursuant to CPLR 3216 … , nor an order dismissing the complaint pursuant 22 NYCRR 202.27 … .

Moreover, “[t]he doctrine of laches does not provide [a] basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable” … . “The procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay where the plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b)” … . In the absence of a 90-day demand pursuant to CPLR 3216, the plaintiff’s motion to restore the action to active status should have been granted … . Guillebeaux v Parrott, 2020 NY Slip Op 06762, Second Dept 11-18-20

 

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