REPORT NO. 142
April 18, 1995
A. 4369 By: M of A Wright
Assembly Committee: Codes
Effective Date: Immediately
AN ACT to amend the civil practice law and rules, in relation to termination of an action
LAW AND SECTION REFERRED TO: CPLR 205, 3216
REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#33)
THIS BILL IS DISAPPROVED
This bill would amend CPLR 205 to provide that where an action is dismissed for failure to prosecute pursuant to CPLR 3216, "the judge shall 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." The sponsor's memorandum states that the bill is necessary because the law is unclear "with respect to what specifically constitutes a neglect to prosecute, particularly where it falls outside Rule 3216, and that CPLR 205(a) has been misconstrued as allowing for many cases to be dismissed on the basis of neglect to prosecute.
Contrary to the memorandum, there are no reported cases permitting a dismissal for failure to prosecute by virtue of CPLR 205. CPLR 205 is a provision that permits re-commencement of an actin, notwithstanding the expiration of the statute of limitations, unless the dismissal is for certain enumerated reasons such as a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, neglect to prosecute the action, or a final judgment on the merits. It is used most often where an action is dismissed in federal court for lack of federal subject matter jurisdiction. It is not, however, authority for a court to dismiss an action for any of the enumerated reasons.
Any legislation dealing with the standards and requirements of a neglect to prosecute ought to appear in CPLR 3216, which is the section deal with such dismissals. This bill would not prevent CPLR 205(a) from being misconstrued as allowing for a dismissal for a failure to prosecute. To the contrary, it would suggest that that subdivision is such authority. If CPLR 3216 is to be the exclusive basis for such dismissal, such provision to appear in CPLR 3216.
For the foregoing reasons, this bill is DISAPPROVED.
Person Who Prepared The Report and Chair of the Committee: Paul H. Aloe, Esq.