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HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined compliance with the “specific conduct” and “notice” requirements of CPLR 3216 had not been demonstrated. Therefore, he motion to dismiss for neglect to prosecute should not have been granted:

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 a written demand to resume prosecution of the action is made by the court, as here, “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” (CPLR 3216[b][3] …). Here, the certification order is not included in the record, and, accordingly, this Court cannot make a determination as to whether that order set forth the information required by the statute.

… [A]nother precondition to dismissal is that where the court, on its own initiative, seeks to dismiss a complaint pursuant to CPLR 3216, it must first give the parties notice of its intention to do so (see id. § 3216[a] …). Such notice is meant to provide the parties with an opportunity to be heard prior to the issuance of an order directing dismissal of the complaint … . Designer Limousine, Inc. v Authority Transp., Inc., 2023 NY Slip Op 03767, Second Dept 7-12-23

Practice Point: In order for a dismissal for neglect to prosecute to hold up on appeal, the judge’s strict compliance with CPLR 3216 must be demonstrated. Here it was not demonstrated that the judge laid out the specific conduct justifying dismissal and it was not demonstrate plaintiff was afforded notice and an opportunity to respond.

 

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IF THE JUDGE DOES NOT LAY OUT IN DETAIL THE SPECIFIC CONDUCT JUSTIFYING A DISMISSAL... ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE...