Memorandum in Support of Creation of CPLR 3216-a
By Michael C. Schmidt
CPLR 3216 permits a court on its own initiative, or upon motion, to dismiss a pending case due to a party’s failure to prosecute. In enacting this provision, the Legislature recognized the courts’ inherent power to dismiss cases from their dockets that are neglected and not diligently pursued; a power that has existed both prior and subsequent to the enactment of the CPLR. See, e.g., Hochberg v. Davis, 171 A.D.2d 192, 575 N.Y.S.2d 311 (1st Dep’t 1992); Work-O-Lite Co. v. Lighting Unlimited, Inc., 198 A.D.2d 144, 604 N.Y.S.2d 734 (1st Dep’t 1993); Judson v. Three D Bldg. Corp., 18 A.D.2d 232, 239 N.Y.S.2d 91 (4th Dep’t 1963); Lawrence v. Cowperthwait, 150 Misc. 326, 269 N.Y.S. 486 (Sup. Ct., N.Y. Cty. 1934); Sulzer v. Fontheim, 170 Misc. 552, 10 N.Y.S.2d 527 (Sup. Ct., N.Y. Cty. 1939). As initially enacted, however, CPLR 3216 did not recognize the potential existence of justifiable delay, and failed to provide any guidance on when such neglect is sufficiently “unreasonable” to warrant the dismissal of the party’s case. Several amendments to CPLR 3216 were subsequently enacted to address some of the identified problems, though none of them, including the existing rule, go far enough, or accomplish the purpose underlying the rule in today’s practice.
Currently, CPLR 3216 authorizes the dismissal of a party’s pleading for failure to prosecute if certain preconditions are met:
1. Issue must have been joined in the action;
2. One year must have elapsed since the joinder of issue; and
3. The party (or the court) seeking the dismissal must have served a written demand by registered or certified mail requiring the party against whom the relief is sought “to resume prosecution of the action and to serve and file a note of issue within ninety days after that party’s receipt of such demand”.
CPLR 3216 (b). If the party fails to serve and file a note of issue within that period, the party serving the demand may seek the dismissal of the action. CPLR 3216(e). If the party serves and files a note of issue within the ninety-day period, however, no further action may be taken to dismiss the case for failure to prosecute, and any pending motions must be dismissed. CPLR 3216(c). Furthermore, once the party serves and files a note of issue, the action cannot be subsequently dismissed by reason of any neglect or failure to prosecute during the time prior to the service and filing of the note of issue. CPLR 3216(d).
The courts primarily have enforced CPLR 3216 where there has been an inexcusable default in complying with the demand. See, e.g., Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 655 N.Y.S.2d 848 (1997); Carota v. Massapequa Union Free Sch. Dist., 272 A.D.2d 428, 708 N.Y.S.2d 340 (2d Dept 2000); Rada v. City of Yonkers, 204 A.D.2d 523, 614 N.Y.S.2d 19 (2d Dep’t 1994); Versatile Furniture Prods., Inc. v. 32-8 Maujer Realty, 97 A.D.2d 463, 467 N.Y.S.2d 435 (2d Dep’t 1983). Yet, as the Court of Appeals stated in Baczkowski, a dismissal of one’s pleading is not assured even if all preconditions have been satisfied:
CPLR 3216, as it now reads, is extremely forgiving of litigation delay. . . . Thus, even when all of the statutory preconditions are met, including plaintiff’s failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse and an affidavit of merit. If plaintiff makes a sufficient showing, the court is prohibited from dismissing the action.
655 N.Y.S.2d at 850-51.
Nevertheless, the fact that a court maintains its discretion to forgive litigation delay is no reason to forgive the lack of any real meaning in the current CPLR 3216. Indeed, it is worth noting that the current version, and the proposed new rule, still expressly state that the court “may” provide the relief sought under the rule. The discretion afforded the court under CPLR 3216 is no different than the discretion courts maintain under other rules. For purposes of CPLR 3216, however, the proposed new CPLR 3216-a set forth below will not only be consistent with current standards and goals of pushing cases along and getting rid of cases where the proponents of those cases have no desire to prosecute them, but also is consistent with the notion of fairness by allowing courts the flexibility of still “forgiving litigation delay” in the right circumstances. Those precise circumstances will be developed ultimately through litigation.
The proposed rule seeks to dispense with certain unfair and meaningless provisions in the current CPLR 3216. For example, requiring the service of a demand letter as a precondition to seeking dismissal under CPLR 3216 provides little incentive for a party to utilize the remedy afforded in that rule. Specifically, CPLR 3216 places a heavy burden on defendants by requiring them to “wake the sleeping dog” and remind plaintiffs to prosecute their own claims. Moreover, the current rule places defendants in the precarious position of requiring plaintiffs to file a note of issue and place the matter on the calendar within ninety days, even though in many cases ninety days will be insufficient for defendants to obtain the discovery they need. Defendants may then have to incur the expense of making a motion to vacate a note of issue that they required plaintiffs to file in the first instance, and potentially be forced to prepare and file a summary judgment motion within 120 days of the note of issue they caused to be filed.
It is worth noting that in contrast to the requirements contained in CPLR 3216, a court may dismiss a party’s claim under CPLR 3124 and 3126, without requiring the moving party to comply with such stringent preconditions, merely upon a showing that a party has failed to comply with discovery. There is no reason to impose a lesser standard in cases involving noncompliance with discovery than in cases where a party fails to take any action to prosecute the claims for more than one year. While the natural order of things might have a non-defaulting party move to compel under CPLR 3124 and 3126 prior to using CPLR 3216, that strategy might differ depending upon the circumstances. It is not unlikely that a party could be faced with a situation, for example, where two CPLR 3124 motions produce two court conferences and two “conditional orders of dismissal”, without any response or action from the neglecting party. In that situation, the non-neglecting party may want to remove the case from its desk, yet may have no desire to force the filing of a note of issue within ninety days. Thus, in some cases, depending on how many times and how egregious the failure to prosecute, the non-neglecting party should be entitled to utilize a more favorable CPLR 3216 remedy that has more “teeth”.
On the other hand, the proposed rule does not get rid of a party’s ability to file a note of issue generally if that party believes discovery is completed (or if in fact it is completed), or the ability to seek other discovery remedies if the party so chooses. All the proposal eliminates is the need to force the neglecting party to file a note of issue as a precondition to the non-neglecting party seeking (not necessarily obtaining) relief under CPLR 3216. However, proposed CPLR 3216-a would not replace current CPLR 3216, thereby continuing to vest authority in courts to institute the “process” by serving a demand that the neglecting party file a note of issue, and providing non-neglecting parties the option of choosing which procedure to utilize against a neglecting party.
It also is worth noting, however, the possibility for abuse and inherent unfairness in removing all burdens for the moving party (more often than not the defendant). Thus, any new rule should require the court or the moving party to make a substantive showing of unreasonableness, in addition to a showing that certain procedural conditions precedent have been satisfied.
In sum, an alternative to CPLR 3216 is necessary to make the procedure more fair and less burdensome for the diligent/non-neglecting party, while at the same time to maintain notions of due process and allow the court discretion to control its docket and forgive neglect when either there is a reasonable excuse, or when the “last act or omission constituting the basis for the court on its own initiative, or the party upon motion, to seek a dismissal” is not sufficient enough to constitute neglect. An additional safeguard is included in the proposed amendment, which imposes a duty to confer in good faith prior to moving under this rule, thus avoiding a situation where one party suddenly “springs” a motion upon another unsuspecting party.
With that said, the ramifications of this rule should not necessarily be exaggerated in view of the fact that, like the current CPLR 3216, proposed CPLR 3216-a is unlikely to be used unless there is a looming statute of limitations problem for the party asserting a claim in the first instance, since the proposed amendment does not dispense with the current provision of CPLR 3216 that states that “unless the order specifies otherwise, the dismissal is not on the merits”. Indeed, that was the primary reason the current proposal does not impose a requirement that the party against whom relief is sought file an “affidavit of merit”. Given such language, resort to CPLR 3216-a will continue to be rare because it will not have much effect if the claimant is within its limitations period and could simply re-file the claim.
II.
Prior Legislative Action
Previous, related attempts to address issues surrounding CPLR 3216 have not passed. Assembly bill A03469 (February 4, 1997) proposed to amend CPLR 205 by requiring a court to set forth on the record the specific conduct constituting a party’s failure to prosecute when such conduct forms the basis of a dismissal for purposes of CPLR 205. By report dated February 19, 1997 (Report No. 3), this committee disapproved A03469 on the ground that the proposed amendment might suggest that CPLR 205 constituted authority for a court to dismiss an action for failure to prosecute, and that any changes to the existing statute should be contained directly in CPLR 3216. Assembly bill A03469 did not pass both houses.
On May 14, 1997, the Senate introduced bill S5326, which proposed a repeal of CPLR 3216 and the enactment of a new rule in its stead. The primary substantive change proposed in S5326 was that it permitted the party seeking relief, or the court on its own, to serve a demand on the party who has neglected to proceed requiring that party to serve either a note of issue or a request for a conference within ninety days after service of the demand. By report dated July 1, 1997 (Report No. 89), this committee approved S5326. While the committee found that the bill “may offer insufficient remedies to achieve its goal”, the changes proposed would provide more flexibility for the court and litigants in attempting to “keep an action moving even when it is not yet ready for trial”, and thus were deemed “a salutary change in the right direction”. Nevertheless, senate bill S5326 similarly did not pass both houses.
Almost two years later, on March 2, 1999, Senator Volker introduced senate bill S3405, which was virtually identical in its proposed changes to senate bill S5326. However, this latest bill failed to receive enough support and ultimately also failed to pass both houses.
The proposal contained in this report differs from prior legislative proposals in that it does not require as a precondition that the party seeking relief serve any demand. While prior legislative proposals added the option of having the party seeking relief to demand that the neglecting party request a conference, that option serves no benefit in practice. The party seeking relief could always, and in any case, file its own request that the court schedule a status conference. There is no need for one party to first demand that the other party seek a conference, and in fact, more time is wasted by such an added layer. Furthermore, the demand requirement in its current form, and in prior legislative proposals, still unfairly places too much of the burden on the party seeking relief. As noted above, the proposal contained in this report attempts to strike a proper balance between shifting more of the burden onto the party that has failed to prosecute its case, while at the same time permitting that party to avoid dismissal if there is a valid excuse for the party’s failure to prosecute.
III. Proposed Changes In New CPLR 3216-a
Conceptually, the proposed new CPLR 3216-a accomplishes the following:
1. Provides a slight, yet meaningful, shift of the burden to the party that has failed to prosecute the case, by eliminating the non-neglecting party’s primary hurdle of having to serve a demand for a note of issue, while at the same time requiring the party seeking relief to make a substantive prima facie showing; and
2. Maintains basic due process notions of adequate notice and opportunity to be heard before an outright dismissal of the neglecting party’s pleading.
Specifically, the proposal differs from the current CPLR 3216 as follows: Subdivision (a) makes clear that any sua sponte action by the court requires notice to the neglecting party, and describes more expansively the relief that may be afforded by the court.
A new subdivision (b) is proposed which provides for relief to be sought by order to show cause, with at least 15 days given to the neglecting party, and the express requirement that papers filed in support of such order to show cause must contain certain facts and attestations to make a prima facie showing of entitlement to relief under the rule.
Prior subdivision (b) has been renamed subdivision (c). The new subdivision eliminates the need for the party seeking relief, or the court, to serve a written demand for the filing of a note of issue, and adds the requirement that “[n]ine months must have elapsed since the last activity in the case by the party against whom dismissal is sought”, and that “[a] good faith attempt to reactivate the case must have been made in writing at least 60 days prior to the bringing of a motion under this rule”.
With the elimination of the note of issue filing requirement, prior subdivisions (c), (d) and (e) have been eliminated as unnecessary.
Finally, the proposal states in section 2 that the act “shall become effective immediately, but no motion may be made under this rule until nine months after such effective date.”
AN ACT to amend the civil practice law and rules in relation to dismissal of actions.
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. The Civil Practice Law and Rules is amended by adding a new rule 3216-a to read as follows:
(a)
Where a party unreasonably neglects to proceed generally in an action or otherwise unreasonably
delays in the prosecution thereof against any party who may be liable to a separate
judgment, or unreasonably fails to serve and file a note of issue, the court, on its own
initiative upon notice to such party, or upon motion, may dismiss the party’s
pleading on terms. in whole or in part, unless such party sufficiently
demonstrates a justifiable excuse for the delay. Unless the order specifies otherwise,
the dismissal is not on the merits.
(b) Any motion made under this rule shall be made by order to show cause providing no less than 15 days notice, and the supporting papers shall contain (i) facts demonstrating that the conditions set forth in subdivision (c) have been complied with, (ii) an identification of the last activity in the case by the party against whom dismissal is sought, and (iii) facts demonstrating that the neglect to proceed in the action or delay in the prosecution thereof was unreasonable.
(b) (c) No dismissal shall be directed under any portion
of subdivision (a) of this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been complied with:
(1)
Issue must have been joined in the action; and one year must
have elapsed since the joinder of issue; and
(2)
One year must have elapsed since the joinder of issue;
(2) Nine months must have elapsed since the last activity in the case by the party against whom dismissal is sought.
(3)
The court or party seeking such relief, as the case may be, shall
have served a written demand by registered or certified mail requiring the party against
whom such relief is sought to resume prosecution of the action and to serve and file a
note of issue within ninety days after receipt of such demand, and further stating that
the default by the party upon whom such notice is served in complying with such demand
within said ninety days period will serve as a basis for a motion by the party serving
said demand for dismissal as against him for unreasonably neglecting to proceed.
(3)
A good faith attempt to reactivate the case must have been made in writing at least
60 days prior to the bringing of a motion under this rule.
(c)
In the event that the party upon whom is served the demand
specified in subdivision (b)(3) of this rule serves and files a note of issue within such
ninety day period, the same shall be deemed sufficient compliance with such demand and
diligent prosecution of the action; and in such event, no such court initiative shall be
taken and no such motion shall be made, and if taken or made, the court initiative or
motion to dismiss shall be denied.
(d)
After an action has been placed on the calendar by the service and
filing of a note of issue, with or without any such demand, provided, however, if such
demand has been served, within the said ninety day period, the action may not be dismissed
by reason of any neglect, failure or delay in prosecution of the action prior to the said
service and filing of such note of issue.
(e)
In the event that the party upon whom is served the demand
specified in subdivision (b)(3) of this rule fails to serve and file a note of issue
within such ninety day period, the court may take such initiative or grant such motion
unless the said party shows justifiable excuse for the delay and a good and meritorious
cause of action.
(f) (d) The provisions of this rule shall not apply to
proceedings within rule thirty-four hundred four.
Section 2. This act shall become effective immediately, but no motion may be made under this rule until nine months after such effective date.
V.
The Proposed New CPLR 3216-a (Standing
Alone)
Rule 3216-a. Want
Of Prosecution Prior To Note Of Issue
(a) Where a party unreasonably neglects to proceed generally in an action or otherwise unreasonably delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative upon notice to such party, or upon motion, may dismiss the party’s pleading in whole or in part, unless the party against whom such relief is sought sufficiently demonstrates a justifiable excuse for the delay. Unless the order specifies otherwise, the dismissal is not on the merits.
(b) Any motion made under this rule shall be made by order to show cause providing no less than 15 days notice, and the supporting papers shall contain (i) facts demonstrating that the conditions set forth in subdivision (c) have been complied with, (ii) an identification of the last activity in the case by the party against whom dismissal is sought, and (iii) facts demonstrating that the neglect to proceed in the action or delay in the prosecution thereof was unreasonable.
(c) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:
(1) Issue must have been joined in the action and one year must have elapsed since the joinder of issue; and
(2) Nine months must have elapsed since the last activity in the case by the party against whom dismissal is sought.
(3) A good faith attempt to reactivate the case must have been made in writing at least 60 days prior to the bringing of a motion under this rule.
(d) The provisions of this rule shall not apply to proceedings within rule thirty-four hundred four.