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New York CPLR Rule 3216: Want of Prosecution

Posted by Arnold A. Arpino | Jul 30, 2015 | 0 Comments

What happens if you are sued and the plaintiff does not do prosecute the case?  After the plaintiff files and serves a lawsuit, if the defendant files an answer - typically the plaintiff or defendant will have to move the case forward.  However, the defendant rarely has an incentive to bring the case before a judge or a arbitrator (unless they have a very strong belief they will prevail on a motion to dismiss).  The plaintiff might not move the case forward either.  This could be for a variety of reasons.  It could be law office failure, the plaintiff not wanting to litigate a case with attorneys on both sides.  This has been really popular in the high volume world of debt buyer lawsuits. It could be speculated that the debt buyer would rather not waste time and resources prosecuting a claim against a defendant who is represented by counsel. 

 So what is your remedy as a defendant if a plaintiff does not move the case forward? Look no further than CPLR 3216, which reads in part "Where a party unreasonably neglects to proceed generally in an action or otherwise delays the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms."

 First, it is important to note that the dismissal is without prejudice, and the dismissal is not on the merits.  This means the plaintiff has the option to re-file.

 Also, the defendant is not permitted to move for dismissal unless the following conditions are met:

1) Issue must have been joined (meaning an answer has been filed).

2) One year must have elapsed since the joinder of the issue.

3) The Court or party seeking the relief, shall have served a written demand through registered or certified mail requiring the party against whom relief is sought to resume prosecution of the action and to serve and file a note of issue (or notice of trial if not in Supreme Court) within 90 days of such demand, and further stating that the default by the party upon whom such notice is served will serve as a basis for a motion to dismiss the complaint. 

 If the party serves and files the note of issue within the 90 day period after receiving the demand, that shall be deemed good and sufficient compliance with the demand and diligent prosecution of the action. 

Lastly, it is important to note that the Court has very broad discretion in deciding whether or not to dismiss the case. The Courts have ruled that CPLR 3216 is an extremely forgiving statute. See: Baczkowski v. Collins Constr. Co., 89 NY2d 499, 503 [1997].  Further, the statute does not require, but merely authorizes the Court to dismiss the plaintiffs action for lack of prosecution See: Davis v. Goodsell, 6 AD3d 382, 383 [2004]

About the Author

Arnold A. Arpino

Arnold practices Creditor's Rights & Collections, Health Law, Real Estate, & Estate Planning.

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Arnold A. Arpino & Associates, P.C., is a full service law firm that represents individuals and businesses in a variety of different practice areas. Our firm regularly appears in the Courts throughout Long Island, New York City, and the Hudson Valley.

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