Lisa Solomon and Marshall R. Isaacs have an interesting post over at the NYSBA's Smallfirmville blog about the variations in how the Courts interpret or ignore the CPLR throughout the counties. They start with CPLR R. 3216. Specifically, they talk about what is going on in Brooklyn. There the judges are giving a date by which the NOI must be filed. Failure to file will result in dismissal. CPLR R. 3216 does not allow the Court to dismiss without certain requirements being met. And one of those requirements is that the notice be sent by "registered or certified mail."
The Appellate Division appears to allow this to go on, by finding that a court order directing that a NOI be filed by a certain date, has "the same effect as a 90-day notice pursuant to CPLR 3216." See, Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)1. By giving it the same effect, the Appellate Division appears to take the court's notice outside the specific requirement of CPLR R. 3216. It's different, but the same. Compare Shcherbina with Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009) where the Appellate Division told us "CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice…." Did you notice how Passet said nothing about the manner of notice? Weird, right?
Check out CPLR § 3215(c), which tells the court that it "shall" dismiss, whether on it's own "initiative or on motion." Notice the differences in the language of Rule 3216 and Section 3215. One has a specific notice requirement, the other doesn't. That should matter. Moreover, CPLR R. 3216 doesn't allow the courts to mess around the method or timing, like CPLR R. 3212(a) does. Well, to be clear, CPLR R. 3212(a) doesn't allow for a change in the method; only the timing.
While we are on the subject of paying attention to the language, remember CPLR § 205(a)? Yeah, that one. The one that requires courts to make certain findings before dismissing pursuant to CPLR R. 3216. No one is paying attention to that.
You should check out the rest of the post. They go on to discuss other issues and what can be done about them.
Wow. I made a post that barely contained any copy and pasting. Hooray for me.
1. Check out Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009) and my post where I pointed out the whole "registered or certified mail" part. There have been a lot of decisions like this lately.