Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969)
A court retains the inherent power to dismiss a case for general delay in prosecution, even after the plaintiff files a note of issue, and is not limited by the specific procedures outlined in CPLR 3216 concerning motions based solely on the failure to file a note of issue.
Summary
This case addresses the scope of a court’s power to dismiss a case for delay in prosecution under New York law. The plaintiff commenced an action in 1958, but after an initial flurry of activity, the case lay dormant for four years. The defendant moved to dismiss for general delay after the plaintiff finally filed a note of issue. The New York Court of Appeals held that the 1964 amendment to CPLR 3216, which imposed specific requirements for dismissal motions based on failure to file a note of issue, did not eliminate the court’s inherent power to dismiss for general delay, regardless of the note of issue filing. The court reasoned that limiting dismissals solely to cases where the defendant serves a 45-day notice would unduly restrict the court’s ability to manage its calendar and address protracted delays.
Facts
The plaintiff initiated a lawsuit in November 1958 concerning alleged liability on guarantees in commercial transactions.
The defendant filed an answer the following month.
In April 1961, the plaintiff served a note of issue and statement of readiness but withdrew it to allow the defendant Mintz to complete pre-trial procedures.
For four years, there was no activity in the case.
In June 1965, the plaintiff served and filed another note of issue.
Defendant Mintz then moved to dismiss the case based on general delay.
Procedural History
The Supreme Court, Special Term, granted the defendant Mintz’s motion and dismissed the complaint due to the plaintiff’s excessive delay and failure to offer a reasonable excuse.
The Appellate Division unanimously affirmed the Special Term’s decision, citing precedent that the 1964 amendment to CPLR 3216 did not eliminate the court’s power to dismiss for general delay.
The Court of Appeals granted leave to appeal to review the correctness of this ruling.
Issue(s)
Whether the 1964 amendment to CPLR 3216 eliminated a court’s inherent power to dismiss a case for general delay in prosecution, even when the motion to dismiss is made after the plaintiff has filed a note of issue.
Holding
No, because the 1964 amendment to CPLR 3216, which outlines a specific procedure for motions to dismiss based on the failure to file a note of issue, does not eliminate the court’s pre-existing and inherent power to dismiss actions for general delay in prosecution.
Court’s Reasoning
The court reasoned that the second paragraph of rule 3216 applies only to dismissal motions “based upon the failure of the plaintiff to serve and file a note of issue.” The court emphasized the legislative history, noting that a subsequent attempt to amend the law to broaden the scope of the 45-day notice requirement to “any failure of the plaintiff to diligently prosecute the action” was vetoed by the Governor due to concerns that it would unduly restrict the court’s discretion. The court also stated that eliminating the court’s inherent power to dismiss for general delay would be “inadvisable and contrary to all tradition.” The court acknowledged its prior decisions in Salama v. Cohen and Tomich v. Cohen, but distinguished the present case by noting that in those cases, the note of issue had not been filed, whereas it had been filed in this case. The court suggested that applying the 45-day notice requirement even after a note of issue is filed would create unnecessary delay and limit the court’s ability to manage its calendar effectively. The court also raised a constitutional concern, citing Riglander v. Star Co., that a statute depriving courts of discretionary power to dismiss for lack of prosecution could be unconstitutional. The court effectively held that CPLR 3216 provides a specific mechanism for dismissal based solely on failure to file a note of issue, but it does not preempt the court’s broader power to dismiss for overall lack of diligence. The court affirmed the lower court’s decision, reinforcing the principle that courts retain the authority to prevent protracted delays in litigation.