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THE COURT’S ORDER DIRECTING PLAINTIFFS TO FILE A NOTE OF ISSUE DID NOT COMPLY WITH THE CRITERIA FOR A 90-DAY NOTICE PURSUANT TO CPLR 3216; THE COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to restore the action to active status and to extend the time to serve and file a note of issue should have been granted. Supreme Court, after a compliance conference, directed plaintiffs to file a note of issue by August 4, 2016, which was 21 days from the date of the compliance conference order. The compliance order therefore did not meet the statutory criteria for a valid 90-day notice pursuant to CPLR 3216. Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216:

The compliance conference order dated July 14, 2016, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiffs to file a note of issue within 21 days, rather than 90 days, of the date of the order … . Furthermore, the compliance conference order failed to set forth any specific conduct constituting neglect by the plaintiffs in proceeding with the litigation (see CPLR 3216[b][3] …). In addition, the Supreme Court failed to give the parties notice and an opportunity to be heard prior to, sua sponte, directing dismissal of the complaint pursuant to CPLR 3216 … .

Since the statutory preconditions to dismissal were not met, the Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216 … .

Contrary to the respondents’ contention, this action could not have properly been dismissed pursuant to CPLR 3126, since there was no motion requesting this relief … . Christiano v Heatherwood House at Holbrook II, LLC, 2020 NY Slip Op 03891, Second Dept 7-15-20

 

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