CPLR § 205(a)

Here I dismissed the initial action without making any finding of a
pattern of delay. However, I believe that a judge hearing the second
action can review the record of the initial action to determine such
issue when no adjudication thereon was made in that action. From an
examination of the papers submitted on these motions, it does not
appear that plaintiff's defaults were wilful or in bad faith and rise
to the level of conduct that warrants the type of sanction imposed in
Andrea. Hence, defendants' application that the court should find that
the dismissal in September 2008 was for lack of prosecution, and that
thus the action is time barred, is denied.

Critics of the Amendment have questioned why it was added to §
205 (a), rather than § 3216, which details the statutory means of
obtaining a dismissal for want of prosecution. See, Siegel "Amendment
Bars 'Neglect to Prosecute' Dismissal," NYLJ, Sept. 15, 2008, p. 4, c.
4; New York State Bar Association's Committee on Civil Practice Law and
Rules memorandum dated July 1, 2008, in opposition to the Amendment.
The reason would appear to be that by the inclusion of the word
"otherwise" in the Amendment, the legislature intended the requqisite
finding of delay be made not only in cases of dismissals under § 3216,
but also in all cases where want of prosecution is the basis for the
prior dismissal. Such situations would thus include dismissals i) for
failure to provide discovery, as in Andrea; ii) for failure to appear
for trial, as in Macaluso v. Statfeld, 295 AD2d 147 (1st Dept. 2002)
and Morris v. Start, 268 AD2d 787 (3rd Dept. 2000); and iii) under CPLR
3404, which specifically states that a failure to restore a case to the
calendar within a year after being marked "off" is a "neglect to
prosecute" [see, Pomerantz v. Cave, 10 AD2d 569 (1st Dept. 1960);
Siegel; New York Practice, 4 ed., § 376].

While it may in future cases be argued that by inserting the Amendment in

§ 205 (a) it was the intent of the legislature to limit the
requirement for a finding of a general pattern of delay to situations
where a plaintiff was seeking to obtain the benefit of the six month
extension, and not to invalidate all dismissals not containing the
finding, that is certainly not clear from the sponsoring memorandum
submitted in support of the bill (A750) containing the proposed
amendment to § 205 (a), where Assemblyman Keith Wright stated the
following:

PURPOSE OR GENERAL IDEA OF BILL:

Establishes a requirement that when a dismissal is one for neglect to prosecute an [*4]action
the judge must set forth on the record the specific conduct
constituting the neglect. The conduct specified must demonstrate a
general pattern of delay in proceeding with the action before a neglect
to prosecute dismissal is warranted.

JUSTIFICATION:

This
bill sets forth a resolution to a persistent problem within our courts
regarding dismissal for neglect to prosecute the action.

The
intent of CPLR § 205 (a) has been misconstrued allowing for many cases
to be dismissed on the basis of neglect to prosecute. The law is
presently unclear with respect to what specifically constitutes a
neglect to prosecute particularly where it falls outside Rule 3216.

Amending CPLR § 205 (a) to provide uniformity would reestablish the original legislative intent of this chapter.

An identical memorandum was submitted by Senator Dale Volker in support of the Senate bill (S2677).

In any event, it would seem that any defendant concerned about a
plaintiff obtaining the benefit of a § 205 (a) extension after a
dismissal on any grounds that could be deemed to be a neglect of
prosecution would be wise to request at the time of dismissal that the
court issue an adjudication on the issue of general delay.

While it has been suggested that the adoption of the Amendment
was an attempt to legislatively overrule the 2005 Court of Appeals
decision in Andrea, that would not appear to be the specific intention
of the Assembly sponsor as he had introduced a similar bill in each
session of the legislature since 1993. It is noted that,
notwithstanding the opposition of the aforesaid State Bar Association
Committee, the Amendment passed with nary a negative vote in either
chamber of the legislature.

Although judgments on default can have res judicata effect
[see, Lazides v. P & G Enterprises, 58 AD3d 607 (2nd Dept. 2009);
Allstate Insurance Company v. Williams, 29 AD3d 688 (2nd Dept. 2006);
Robbins v. Growney, 229 AD2d 356 (1st Dept. 1996)], as can an order of
preclusion [see, Strange v. Montefiore Hospital and Medical Center [59
NY2d 737, 739 (1983)], defendants have not raised that issue herein
(tr. pp. 12-13). In any event, it has been held that "[w]here a
plaintiff's noncompliance with a disclosure order does not result in a
dismissal with prejudice, or an order of preclusion or summary judgment
in favor of defendant so as to effectively close plaintiff's proof,
dismissal resulting from noncompliance is not a merits determination so
as to bar commencement of a second action" [Maitland v. Trojan Electric
& Machine Co., Inc., 65 NY2d 614, 615-616 (1985)]. See also,
Daluise v. Sottile, supra, at p. 802; Downtown Acupuncture P.C. v.
State Farm Mutual Automobile Ins. Co., 20 Misc 3d 137 (A), 2008 WL
2831979. (App. Term 2nd & 11th Districts).

In conclusion, since I have found that my dismissal of the
initial action cannot be said to have been based on a lack of
prosecution, the motions of defendants to dismiss are denied. This
decision constitutes the order of the court.