New York Law Review

Tag: General Delay

  • Baczkowski v. Collins Construction Co., 89 N.Y.2d 499 (1997): CPLR 3216 Demand Requirement for Dismissal

    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.

  • Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969): Discretion to Dismiss for General Delay Before Note of Issue Filing

    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.

  • Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969): Court’s Inherent Power to Dismiss for General Delay

    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.