Chapter 156 of the Laws of 2008 was signed into law on July 7, 2008, took effect immediately, and is in effect now.
Most interesting is that it is not an amendment of CPLR 3216, the
CPLR’s explicit provision on the neglect to prosecute, but of CPLR
205(a), the statute that gives a plaintiff a new six-month period in
which to commence a new action when a non-merits dismissal of an
earlier one occurs and the original statute of limitations has already
expired. The problem aimed at by the amendment is that the neglect to
prosecute dismissal is an exception to CPLR 205(a), which does not
offer its six months when want of prosecution is the reason for the
The neglect to prosecute dismissal is not ordinarily on the merits and
therefore doesn’t give rise to a res judicata defense if the plaintiff
brings a new action on the claim. The statute of limitations is and has
almost always been the problem. If the statute has expired when the
neglect to prosecute occurs, a new action is barred by time and CPLR
205(a) offers no lifeline.1
The amendment adds to CPLR 205(a) the instruction that a court making a neglect to prosecute dismissal must:
set forth on the record the specific conduct constituting the
neglect, which conduct shall demonstrate a general pattern of delay in
proceeding with the litigation.
Presumably a neglect to prosecute dismissal made without that
showing – that explicit finding of "a general pattern of delay" – will
no longer disqualify the case for the six-month period for the new
action, which is sterling news for plaintiffs. Tentatively, anyway.
There are lessons here for all litigation participants: judges,
plaintiffs and defendants, especially in view of the fact that there
exist a variety of dismissals based on specific misconduct – failure to
serve a complaint, answer a calendar call, pick a jury, submit to
pretrial disclosure, etc. – that can also qualify as "neglect to
prosecute" dismissals under CPLR 205(a) and thus not earn the six
months for a new action.
There are a number of "neglect to prosecute" dismissals, in other
words, that are not predicated on the "neglect to prosecute" statute,
CPLR 3216. The "neglect to prosecute" reference in CPLR 205(a) is a
galaxy of its own, in which CPLR 3216 is but one planet.
The lesson to judges now faced directly with a CPLR 3216 motion to
dismiss is to grant it only when satisfied that the plaintiff has been
guilty of "a general pattern of delay,",and only if the judge is
prepared to "set forth on the record the specific conduct constituting
the neglect." Dismissing without that record, even if denominating the
dismissal as one for "neglect to prosecute" or using a like phrase,
will not deny the plaintiff the cherished gift of the CPLR 205(a) six
A "general pattern of delay" is the sine qua non, with a written record
detailing the plaintiff’s "specific conduct" that justifies the
"general pattern of delay" conclusion.
Apparently just one or two missteps or delays by a plaintiff won’t do
the job. There’s got to be a "pattern" of dilatory conduct.