Bill S5073-2013

Relates to want of prosecution

Relates to want of prosecution.



  • May 12, 2014: SUBSTITUTED BY A9075
  • Apr 30, 2014: 2ND REPORT CAL.
  • Apr 29, 2014: 1ST REPORT CAL.423




VOTE: COMMITTEE VOTE: - Judiciary - Apr 29, 2014
Ayes (22): Bonacic, DeFrancisco, Flanagan, Lanza, LaValle, Little, Nozzolio, O'Mara, Savino, Ranzenhofer, Zeldin, Grisanti, Avella, Hassell-Thompson, Breslin, Dilan, Espaillat, Perkins, Stavisky, Hoylman, Addabbo, Squadron
Ayes W/R (1): Hannon



TITLE OF BILL: An act to amend the civil practice law and rules, in relation to want of prosecution

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

This measure is proposed in response to widespread complaints from the bar concerning CPLR 3216, which governs want of prosecution in a civil matter. Rule 3216 has not been amended since 1978 - before implementation of the current IAS system, preliminary conferences, compliance conferences and certification orders. Simply put, the language of rule 3216 is out-of-sync with current, well-established facets of civil practice.

Our Advisory Committee has undertaken an extensive analysis of the practice pursuant to rule 3216 and considered possible amendments. Since 2004 the Committee has recommended a measure which would amend both rule 3216 and rule 3404. As detailed in the Court of Appeals' recent decision in Cadichon v. Facelle, 18 N.Y.3d 230 (2011), many courts automatically include a 90-day notice in a generic preliminary conference order the execution of which may result in an administrative dismissal of a civil action with no further notice to the parties. In addition, the practice under rule 3216 is further complicated by the confusion that results from the interplay between a 90-day demand, statutory disclosure requirements and the filing of a note of issue. The Committee believes, consistent with the decision in Cadichon, that the bench and bar would benefit from a statutory amendment which codifies a specific, simple roadmap and includes a red flag, formal notice to the parties of the threat of a dismissal. In many cases the parties are actively prosecuting or defending the matter and, given an opportunity to do so, would be prepared to establish that fact to the court, a result infinitely more beneficial to the litigants than an outright dismissal by the court clerk's office.

This measure would add to rule 3216(a) the requirement that a dismissal order from the court may only be "with notice to the parties." It would amend rule 3216(b)(2) to clarify the time line by requiring that no dismissal shall be directed unless one year has elapsed since the joinder of issue or six months since the issuance of the preliminary court conference order where such an order has been issued, whichever is later. Finally, the measure would amend rule 3216(b)(3) to add that "(w)"here 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."

Importantly, our Committee believes that the balance encompassed in the original statute should remain intact. Further, it believes that the court's ability to sua sponte order dismissal should be preserved, with the addition of this amendment requiring that such order may only be made upon notice to the parties and not as an automatic dismissal because a pre-set deadline has passed.

This measure would have no fiscal impact on the State. It would take effect immediately and shall apply to judgments or orders appealed from on or after that date.

Legislative History:

None. New proposal.


STATE OF NEW YORK ________________________________________________________________________ 5073 2013-2014 Regular Sessions IN SENATE May 8, 2013 ___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to want of prosecution THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions (a) and (b) of rule 3216 of the civil practice law and rules, as added by chapter 770 of the laws of 1967, paragraph 3 of subdivision (b) as amended by chapter 4 of the laws of 1978, are amended to read as follows: (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 unrea- sonably 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. S 2. This act shall take effect on the first of January next succeed- ing the date on which it shall have become law.


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