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THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216 PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to comply with the requirements of CPLR 3216 precluded the dismissal of the complaint:

… [A]bsent strict compliance with the conditions precedent to dismissal set forth in CPLR 3216 (b) (3), “[n]o dismissal shall be directed” … . Indeed, “[t]he conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly” … .

Among those conditions precedent are the service of a ninety-day demand to resume prosecution, by registered or certified mail, which specifically states that the failure to file the note of issue within ninety days will serve as a basis for a motion to dismiss for want of prosecution … . Where the ninety-day demand is served by the court, the demand shall also “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, the court did not serve a ninety-day demand upon plaintiff, and for that reason alone, the court erred in directing dismissal pursuant to CPLR 3216. Even assuming, arguendo, that the court’s second supplemental scheduling order could serve as the substitute for a ninety-day demand, that scheduling order did not indicate that dismissal would result if plaintiff failed to file the note of issue, nor did it set forth the specific conduct constituting plaintiff’s neglect … . “While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply, i.e., dismissal of the complaint” … , and here, the order wholly failed to do so. Woloszuk v Logan-Young, 2025 NY Slip Op 02444, Fourth Dept 4-25-25

Practice Point: The conditions precedent for dismissal of a complaint in CPRL 3216 must be strictly complied with by the judge or reversal is mandatory.

 

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