Failure to Restore ≠ Failure to Prosecute (it’s a little more complicated) CPLR 3216

In July 2003, plaintiff commenced this action in the Supreme Court to recover the principal sum of $50,000 for services rendered to defendant. Issue was joined, and, in November 2004, the case was transferred to the Civil Court pursuant to CPLR 325 (d). A notice of trial was filed, but the case was subsequently marked off the Civil Court calendar in 2005. In February 2008, plaintiff moved to restore the case to the trial calendar, and defendant cross-moved for dismissal of the complaint. By order entered July 10, 2008, the Civil Court stated that the "parties are directed to complete all outstanding discovery within 90 days . . . In all other respects, the motion and cross motion are denied." The instant appeal by defendant ensued.

Inasmuch as more than two years had passed before plaintiff moved to restore the case to the trial calendar, plaintiff was required to demonstrate, inter alia, a reasonable excuse for the delay and the merits of the case (see Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Portoreal v Fields, 20 Misc 3d 139[A], 2008 NY Slip Op 51574[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). Plaintiff argues that it demonstrated a reasonable excuse for the delay since, during the relevant time period, it was attempting to arrange depositions, as evidenced by letters and phone calls. However, the papers plaintiff submitted in support of its motion provided no information as to what specific actions it took between December 2006, when it sent its final letter to defendant's attorney requesting deposition availability dates, and February 2008, when it made the instant motion. Consequently, plaintiff failed to demonstrate a reasonable excuse for the delay, and, thus, its motion should have been denied in its entirety (Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U]).

Defendant cross-moved "for an order dismissing this action with prejudice." Since the [*2]case had been marked off the calendar and was in pre-notice-of-trial status, defendant could only have moved for dismissal, for want of prosecution, pursuant to CPLR 3216 (see e.g. Express Shipping, Ltd. v Gold, 63 AD3d 669, 670 [2009]). A delay in prosecuting an action, however, is not a ground for dismissal of the complaint when the plaintiff has not been served with a 90-day demand to serve and file a notice of trial (see Chase v Scavuzzo, 87 NY2d 228 [1995]; Rosenberg v Rae, 36 AD2d 835 [1971]; see also Bar-El v Key Food Stores Co., Inc., 11 AD3d 420 [2004]). Since defendant did not provide plaintiff with the requisite demand, its cross motion was properly denied (see Rosenberg, 36 AD2d at 835; see also Bar-El, 11 AD3d at 420).

CPLR 3404 is out because it doesn't apply in Civil Court.  That leaves 22 NYCRR § 208.14(c).  But just because it can't be restored doesn't mean that it can be dismissed with prejudice.  At least not under 3216.  CPLR 3216, as opposed to 3215, has a notice requirement.  Before anything can be dismissed under 3216, its protocols must be satisfied.  And even if it was dismissed under 3216, it probably wouldn't be dismissed with prejudice.  Going one step further, there would probably be a toll of the SOL, unless the judge made certain findings as required by CPLR 205(a).