You are here: / / TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR...
, ,

TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined that dismissal for failure to prosecute requires more than one instance of neglect (here plaintiff was not ready to proceed on the trial date). Rather, a pattern of neglect must be shown in order to deprive plaintiff of the six-month recommencement benefit of CPLR 205(a):

While the prior action was dismissed due to plaintiff’s unreadiness to go forward with the trial as scheduled on December 16, 2022 … , the … trial court, in dismissing the case, did not set forth on the record any additional instances of neglect by the plaintiff that could “demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 205[a] …), as opposed to one particular lapse, namely, the lack of readiness on the trial date. The court’s statement that the case had been “languishing since 2010” does not suffice, inasmuch as it fails to specify any “specific conduct . . . demonstrat[ing] a general pattern of delay” (CPLR 205[a] …). As this Court has recently held, a “general pattern of delay” must comprise more than one instance of dilatory conduct … . U.S. Bank Natl. Assn. v Fox, 2023 NY Slip Op 00046, First Dept 1-5-23

Practice Point: A plaintiff will not be deprived of the six-month recommencement benefit of CPLR 205(a) unless there has been more than a single instance of neglect (here plaintiff was not ready for trial). In addition, the judge must, in the order dismissing the action, set forth the facts demonstrating a pattern of neglect before the plaintiff will be prohibited from recommencing the action.

 

You might also like
THAT THE LADDER WAS NOT DEFECTIVE DID NOT MATTER, THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES AND THE LADDER WAS NOT ADEQUATELY SECURED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).
THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT).
Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination
COVERAGE AT ISSUE WAS THE SUBJECT OF A POLICY EXCLUSION (WHICH WAS THEN ADDED BACK IN BY AN ENDORSEMENT); BECAUSE THE COVERAGE WAS NOT OUTSIDE THE SCOPE OF THE POLICY A TIMELY DISCLAIMER WAS REQUIRED.
THE 30-DAY NOTICE PROVISION IN THE MORTGAGE DID NOT PRECLUDE ACCELERATING THE DEBT BY THE ALLEGATIONS IN THE FORECLOSURE COMPLAINT, SUPREME COURT SHOULD NOT HAVE NULLIFIED THE ACCELERATION (FIRST DEPT).
DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO (COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS).
INSURANCE COVERAGE DEPENDED UPON WHETHER THE INJURED RESPONDENT RESIDED WITH HIS SON IN MAINE; RESPONDENT ALLEGED HE SPLIT HIS TIME BETWEEN RESIDING IN NEW YORK AND RESIDING WITH HIS SON; A PERSON MAY HAVE MORE THAN ONE RESIDENCE; A FRAMED-ISSUE HEARING WAS REQUIRED (FIRST DEPT).
BECAUSE THE RESPONDENT CREATED AMBIGUITY ABOUT WHETHER IT WAS STILL CONSIDERING PETITIONER’S FOIL REQUEST AFTER EXPIRATION OF THE 10-DAY CONSTRUCTIVE-DENIAL PERIOD, THE FOUR-MONTH PERIOD FOR COMMENCING AN ARTICLE 78 PROCEEDING DID NOT START ON THE CONSTRUCTIVE-DENIAL DATE; THE ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (FIRST 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

THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON... NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER...