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  • Posted on: Dec 30 2020

If a plaintiff fails to prosecute an action dismissal for “want of prosecution” may be obtained pursuant to CPLR 3216, which provides, in pertinent part:

(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in 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, with notice to the parties, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(1) Issue must have been joined in the action;

(2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later;

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.

Thus, if a party seeks a dismissal pursuant to CPLR 3216, compliance with three conditions precedent must be satisfied, but if it is the Court seeking dismissal, there is a fourth requirement found in the last sentence of subsection (b)(3) thereof.  Before dismissal is granted, all statutory requirements must be met.  Ramirez v. Reyes, 171 A.D.3d 1114, 1116 (2nd Dep’t 2019).  In order to avoid dismissal if all required conditions are met, “the plaintiff was required to demonstrate a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action.”  Ramirez, 171 A.D.3d at 1116.  

In actions where there are multiple defendants, a CPLR 3216 dismissal may only be obtained by the defendant(s) that served a 90-day demand.  Fichera v. City of New York, 79 A.D.597, 598 (2nd Dep’t 1980); Yunga v. Yonkers Contracting Co., Inc., 134 A.D.3d 1031, 1033 (2nd Dep’t 2015).

In Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771 (2nd Dep’t 2017), supreme court dismissed plaintiff’s action on its own motion.  In finding that the statutory conditions were not satisfied and in reversing supreme court, the Second Department stated that : (1) “the certification order did not set forth any specific conduct constituting neglect by the plaintiff” as required by CPLR 3216(b)(3); and, (2) “Supreme Court failed to give the parties notice and an opportunity to be heard prior to considering whether to dismiss the action pursuant to CPLR 3216” as required by CPLR 3216 (a).  Rhodehouse, 151 A.D.3d at 773.

On December 23, 2020, in Deutsche Bank Nat. Trust Co. v. Henry, the Second Department reversed the administrative dismissal of the action pursuant to CPLR 3216.  Henry, a mortgage foreclosure action,was commenced in 2007.  At a status conference held in March of 2017, the court issued a conditional order of dismissal (1) “in which it stated that more than one year had passed since joinder of issue, and that the plaintiff had unreasonably neglected to prosecute the action”; and, (2) in which it stated  that “‘this action is dismissed pursuant to CPLR 3216 and the County Clerk is directed to cancel the Notice of Pendency unless Plaintiff files a note of issue or otherwise proceeds by motion for entry of judgment within 90 days of the date hereof.’”  When the plaintiff failed to comply with the conditional order, the case was administratively dismissed and plaintiff’s motion to restore was denied.

In reversing supreme court, the Henry Court stated:

CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with.  As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed.  While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216, the conditional order of dismissal here was defective in that it failed to state that the plaintiff’s failure to comply with the notice “will serve as a basis for a motion” by the court to dismiss the action for failure to prosecute. The Supreme Court should not have administratively dismissed the action without further notice to the parties and without benefit of further judicial review.

(Citations and some internal quotation marks omitted; emphasis in original.)

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