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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.

 

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