CPLR R. 3404. Dismissal of abandoned cases
CPLR R. 3216 Want of prosecution
Express Shipping, Ltd. v Gold, 2009 NY Slip Op 04374 (App. Div., 2nd, 2009)
An action may be dismissed for want of prosecution pursuant to
either CPLR 3216 or CPLR 3404. The procedural mechanism for dismissal
for want of prosecution depends on whether a note of issue has been
filed (see Lopez v Imperial Delivery Serv., 282 AD2d 190). CPLR 3404 does not apply to pre-note of issue actions and cannot provide a basis for dismissal of such actions (see Sellitto v Women's Health Care Specialists, 58 AD3d 828; Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d 750; Lopez v Imperial Delivery Serv., 282
AD2d at 199). In actions such as this, where a note of issue has not
been filed, CPLR 3216 provides the procedural mechanism for dismissal
for want of prosecution (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21 AD3d 522), provided certain statutory prerequisites are met (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21
AD3d at 523). Here, the defendant established that the clerk erred by
marking the case disposed. In opposition, the plaintiffs failed to
establish that they timely served a 90-day notice demanding that the
defendant resume prosecution of the counterclaims or risk their
dismissal (see CPLR 3216[b]). Absent proof of compliance with
CPLR 3216 (b), it was error to deny the defendant's motion to restore
the counterclaims to the calendar (see Baczkowski v Collins Constr. Co., 89 NY2d at 503; Delgado v New York City Hous. Auth., 21 AD3d 522).
As noted above, the Supreme Court denied the defendant's motion,
in effect, directed the dismissal of the defendant's counterclaims, and
did not determine the merits of those branches of the defendant's
motion which were for summary judgment on the first and fourth
counterclaims. Under the circumstances, and in the interest of judicial
economy, we determine the merits of those branches of the defendant's
motion (see Mobil Oil Corp. v Christian Oil & Gas Distribs., 95 AD2d 772, 773; Osserman v Osserman, 92 AD2d 932, 933).
The bold is mine.
CPLR R. 3404. Dismissal of abandoned cases
Casavecchia v Mizrahi, 2009 NY Slip Op 03858 (App. Div., 2nd, 2009)
Christiano v Solovieff Realty Co., L.L.C., 2009 NY Slip Op 03942 (App. Div., 1st, 2009)
Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic,
282 AD2d 366 ). Their affidavit of merit was conclusory, they
offered no reasonable explanation for their failure to proceed with
discovery for nearly two years, they failed even to address the issue
of prejudice to defendants, and their lack of activity [*2]between
the time the case was struck from the calendar and their court-ordered
motion to restore fails to rebut the presumption of abandonment.
22 NYCRR § 208.14 Calendar default; restoration; dismissal
any scheduled call of a calendar or at a pretrial conference, if all
parties do not appear and proceed or announce their readiness to
proceed immediately or subject to the engagement of counsel, the judge
presiding may note the default on the record and enter an order as
(1) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.
If the defendant appears but the plaintiff does not, the judge may
dismiss the action and may order a severance of counterclaims or
(3) If no party appears, the judge may strike the action from the calendar or make such other order as appears just.
(c) Actions stricken from the calendar may be
restored to the calendar only upon stipulation of all parties so
ordered by the court or by motion on notice to all other parties, made
within one year after the action is stricken. A motion must be
supported by affidavit by a person having firsthand knowledge,
satisfactorily explaining the reasons for the action having been
stricken and showing that it is presently ready for trial.
V.S. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 29226 (App. Term, 2nd)
On November 6, 2007, plaintiff moved to vacate the order of
dismissal and restore the matter to the trial calendar. Plaintiff's
counsel submitted an affidavit from counsel's employee, Polina
Shvartsberg, who stated that she is responsible for calendaring
counsel's trial dates and that she failed to do so in this matter.
Consequently, plaintiff's counsel was unprepared for trial.
The Civil Court denied plaintiff's motion, concluding that
plaintiff "has failed to show a reasonable excuse for its delay, as
well as a meritorious cause of action, lack of prejudice to the
defendant and a lack of intent to abandon this action." The court added
that plaintiff's motion was untimely, as the matter had been marked off
the calendar for more than a year.
Plaintiff now appeals, claiming that the Civil Court should
have granted its motion to vacate the default pursuant to CPLR 2005 and
CPLR 5015. We affirm.
Although both defendant and the Civil Court appear to rely on
Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (c)
to support the denial of plaintiff's motion, we conclude that this
provision is inapplicable under the circumstances of this case. Section
208.14 (c) governs restoration of cases within one year after the
action has been stricken from the calendar. Here, since the
case was never stricken from the trial calendar, but rather was
dismissed, section 208.14 (c) is inapplicable.
Although the Civil Court, in dismissing the case, did not
specifically note a default, it is clear from the record that the case
was dismissed on default. Uniform Rules for the New York City Civil
Court (22 NYCRR) § 208.14 (b) provides, in relevant part, that
"[a]t any scheduled call of a calendar . . . if all parties do not
appear and proceed or announce their readiness to proceed immediately .
. . the judge presiding may note the default on the record and enter an
order as follows:
* * *
(2) If the defendant appears but the plaintiff does not, the judge may dismiss the action . . . ."
In this case, a card attached to the notice of trial clearly states
that the case was dismissed because plaintiff was not ready to proceed.
Indeed, plaintiff — both in the Civil Court and on appeal — refers to
the dismissal as being entered on default and maintains that its motion
to vacate the default should have been granted pursuant to CPLR 5015.
In these circumstances, it was incumbent upon plaintiff to demonstrate
a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 ). Plaintiff failed to sustain this burden.
The sole explanation offered by plaintiff for its default is
that plaintiff's counsel's office failed to calendar the trial date.
Such conclusory and factually devoid allegations are insufficient to
constitute a reasonable excuse (see Juarbe v City of New York, 303 AD2d 462 ). On this basis alone, plaintiff's motion was properly denied.
The bold is mine.