You are here: / / THE CONDITIONAL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE DID NOT MEET...
,

THE CONDITIONAL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE DID NOT MEET THE CRITERIA OF CPLR 3216; THEREFORE THE MATTER SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to vacate the conditional order of dismissal should have been granted because the conditions in CPLR 3216 were not met by the order:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , the conditional order of dismissal here “‘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'” … . The Supreme Court should not have administratively dismissed the action without further notice to the parties and without benefit of further judicial review … . Deutsche Bank Natl. Trust Co. v Henry, 2020 NY Slip Op 07863, Second Dept 12-23-20

 

You might also like
ALTHOUGH THIS MEDICAL MALPRACTICE ACTION WAS IMPROPERLY BROUGHT AS AN ORDER TO SHOW CAUSE AND PETITION, IT SHOULD NOT HAVE BEEN DISMISSED; RATHER IT SHOULD HAVE BEEN CONVERTED BY DEEMING THE ORDER TO SHOW CAUSE A SUMMONS AND THE PETITION A COMPLAINT; MATTER REMITTED (SECOND DEPT).
INDEMNIFICATION IS ONLY AVAILABLE IF THE PARTY SEEKING IT IS NOT NEGLIGENT (VICARIOUS LIABILITY); A PARTY WHO IS PARTIALLY NEGLIGENT MAY ONLY SEEK CONTRIBUTION, NOT INDEMNIFICATION, FROM OTHER TORT-FEASORS (SECOND DEPT). ​
STAY IMPOSED BY A SOUTH CAROLINA COURT AS PART OF THE LIQUIDATION OF A SOUTH CAROLINA MEDICAL MALPRACTICE INSURANCE CARRIER WAS NOT ENTITLED TO FULL FAITH AND CREDIT IN A NEW YORK ACTION AGAINST DEFENDANTS INSURED BY THE INSOLVENT CARRIER (SECOND DEPT).
ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​
BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT).
BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED.
IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).
“Standing” to Bring Foreclosure Action Defined

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

A WALKWAY WET FROM RAIN WHICH WAS FALLING AT THE TIME OF THE SLIP AND FALL WAS... THE MOTION TO AMEND THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE IN THIS...