Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969)
A court retains the discretion to dismiss an action for general delay in prosecution, even before a note of issue is filed, without requiring the defendant to serve a 45-day demand, as long as the motion isn’t solely based on the failure to file a note of issue.
Summary
The New York Court of Appeals addressed whether a court could dismiss a case for general delay before a note of issue was filed, without the defendant first issuing a 45-day demand to the plaintiff to file one. The court held that CPLR 3216’s 45-day demand requirement only applies when the motion to dismiss is solely based on the failure to file a note of issue. The court reasoned that the statute does not restrict the inherent power of the courts to dismiss actions for overall neglect. The court affirmed the dismissal, emphasizing the importance of diligent prosecution of actions.
Facts
The plaintiff alleged injuries in October 1960 and filed suit against the defendant in June 1962. The defendant requested a physical examination in March 1963, which the plaintiff failed to attend. No further action was taken by the plaintiff. In February 1965, the defendant moved to dismiss the case based on general delay.
Procedural History
The Special Term denied the defendant’s motion to dismiss. The Appellate Division reversed the Special Term’s order and granted the defendant’s motion to dismiss.
Issue(s)
Whether a court has the power to dismiss an action for general delay before the filing of a note of issue, if the defendant has not complied with the 45-day demand requirement of CPLR 3216.
Holding
No, because CPLR 3216’s 45-day demand requirement only applies when the motion to dismiss is based solely on the failure to file a note of issue, and does not restrict the court’s power to dismiss for general delay.
Court’s Reasoning
The court reasoned that the second paragraph of CPLR 3216, which outlines the 45-day demand requirement, only applies when the motion to dismiss is based on the failure of the plaintiff to serve and file a note of issue. The court emphasized that in this case, the defendant’s motion was based on general delay, not solely on the failure to file a note of issue. The court also noted the Governor’s veto of a proposed amendment to CPLR 3216, which would have imposed an unnecessary limitation on the discretion of the courts in dealing with neglected actions. The court stated, “We agree that the courts, in dealing with neglected actions, should not be unduly hampered.”
The court acknowledged the concern that defendants might circumvent the 45-day demand requirement by always characterizing their motions as being for “general delay.” However, the court stated that it is not bound by the defendant’s characterization of the motion. A court can examine all the factors and determine whether there has been general delay or whether the only delay is a slight delay in filing the note of issue. The court emphasized the importance of diligent prosecution of actions, stating that “a rule which would permit plaintiffs’ attorneys to delay inordinately prior to the filing of a note of issue without risk of dismissal for failure to prosecute would hardly encourage their diligent prosecution of actions.”
The court clarified its previous holdings in Salama v. Cohen and Tomich v. Cohen, stating that insofar as those cases implied that the 45-day demand requirement of 3216 applies to cases where there has been general delay prior to the filing of a note of issue, they should not be followed. The court concluded that CPLR 3216 leaves untouched the general power of the courts to dismiss actions in their discretion for general delay, but mandates the 45-day demand requirement where the only basis for the motion is a delay in the filing of a note of issue not amounting to general delay. The court observed that the facts of the case indicated a general delay on the part of the plaintiff.