Baczkowski v. Collins Construction Co., 89 N.Y.2d 499 (1997)

A court cannot dismiss an action for general delay if the plaintiff has not been served with a 90-day demand to serve and file a note of issue as required by CPLR 3216(b).

Summary

This case addresses whether a court can dismiss a complaint for general delay when the defendant has failed to serve the plaintiff with a 90-day demand to file and serve a note of issue as required by CPLR 3216. The Court of Appeals held that absent such a demand, dismissal for general delay is improper. The court emphasized the legislative history and intent behind CPLR 3216, particularly the 1967 reenactment, which aimed to prevent dismissals for failure to prosecute without first providing the plaintiff with a chance to file a note of issue. The ruling underscores the importance of strict adherence to the procedural requirements of CPLR 3216 before a case can be dismissed for delay.

Facts

The plaintiff commenced an action for attorney’s fees and breach of contract. The Supreme Court denied the plaintiff’s motion for summary judgment and directed the plaintiff to file and serve a note of issue. The plaintiff served, but did not file, a note of issue in October 1989. A second note of issue was served and filed in August 1992. The defendants moved to strike the note of issue and dismiss the complaint, arguing the plaintiff failed to comply with the 1989 order and abandoned the lawsuit by failing to take action for three years. The Supreme Court denied the motion, noting the defendants’ failure to comply with CPLR 3216.

Procedural History

The Supreme Court denied the defendant’s motion to strike the note of issue and dismiss the complaint. The Appellate Division modified the Supreme Court’s order, granting the motion to strike the note of issue and dismiss the complaint, characterizing the plaintiff’s delay as general delay. The Court of Appeals reversed the Appellate Division’s order, holding that the failure to serve a 90-day demand as required by CPLR 3216(b) barred dismissal of the complaint.

Issue(s)

Whether a court can dismiss an action for general delay when the defendant has not served the plaintiff with a 90-day demand to serve and file a note of issue as required by CPLR 3216(b).

Holding

No, because courts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b).

Court’s Reasoning

The Court of Appeals emphasized the plain language of CPLR 3216, which requires a written demand to serve and file a note of issue within 90 days before a court can dismiss an action for neglect to proceed. The Court reviewed the legislative history of CPLR 3216, noting the amendments intended to address concerns about cases being dismissed for failure to prosecute without adequate notice. The Court cited Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 246, stating, “As it now reads, the statute [CPLR 3216] permits of no doubt as to its meaning: no motion to dismiss for failure to prosecute, brought prior to the filing of a note of issue, may be made unless the defendant has first served the plaintiff with a demand that he file a note of issue. In other words, under the 1967 change, any plaintiff who has neglected to place his case on the calendar for any reason automatically gets a second chance to do so before his case may be dismissed.” The court concluded that without the 90-day demand, dismissal for general delay is improper. The plaintiff’s self-initiated action in filing and serving the note of issue insulated plaintiff from dismissal for any delay prior to the filing.