COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 89 July 1, 1997

S. 5326 By: Senator Volker

Senate Committee: Rules

Effective Date: 1st day of January

next succeeding the

date on which it shall

become a law

AN ACT to amend the civil practice law and rules, in relation to neglect to proceed and to repeal rules 3216 and 3404 of such law and rules relating thereto

LAW AND SECTIONS REFERRED TO: CPLR 3216 AND 3404

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#30)

THIS BILL IS APPROVED

This bill repeals CPLR 3216 and 3404, provisions imposing penalties for failure to proceed in an action, and replaces them with new provisions that better clarify the differences between Rule 3216 and Rule 3404, offer somewhat more flexibility to the parties and the court and, in the case of the new CPLR 3404, imposes a shorter time limit for restoring a matter to the trial calendar. The bill, overall, would be a salutatory change, although, to the extent that the aim is to speed cases along and deter plaintiff's from permitting cases to remain inactive for indefinite periods of time, it may offer insufficient remedies to achieve its goal.

Section 1 of the bill replaces the current CPLR Rule 3216 with a new provision dealing with "neglect to proceed prior to note of issue." It allows a choice of sanctions in addition to dismissal, the only sanction provided in the present law. The court may strike a pleading in whole or in part, render a judgment by default, order an inquest, or dismiss the action or any part of it. As with existing law, dismissal is not on the merits unless the court specifies otherwise.

The so-called "90-day demand" remains a condition precedent to the imposition of sanctions. However, the demand, under the proposed law, is served by regular mail and shall require, at the election of the court or the party who sends it, that, within ninety days after service, the party who has neglected to proceed shall serve and file with the court either a written request for a conference with the court or a note of issue.

Thus, the court or a party would be able to use CPLR 3216 to attempt to keep an action moving even when it is not yet ready for trial.

Failure to comply with a demand from a party allows the demanding party to then move for sanctions. If the demand comes from the court, failure to comply serves as the basis for "dismissal by the court on its own initiative."

Although new CPLR 3216 (c) states that the court or party making the demand elects whether to demand the filing of a note of issue or a request for a conference, new 3216 (d) states that:

In the event that the party upon whom is served the demand specified in Subdivision (b) of this rule serves and files a request for a conference or 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, the court shall not take action pursuant to subdivision (a) of this rule, either upon motion or on its own initiative.

This suggests that if, for example, a demand for service and filing of a note of issue is met by a written request for a conference, the court or party making the demand cannot seek sanctions. That is not an unreasonable outcome but may not be what the drafters had in mind. Presumably, at the conference, the court could set deadlines in the case and dismiss the case if the deadlines are not met, although the bill does not spell this out. Consideration also needs to be given to the extent that the new CPLR 3216 would support various case management projects underway in certain courts across the state.

For some reason, the new law replaces the language of old CPLR 3216 (f) to the effect that "[t]he provisions of this rule shall not apply to proceedings within rule thirty-four hundred four," with a provision that they do not apply to proceedings within CPLR §3126, penalties for failure to comply with disclosure. There is no longer any reference to Rule 3404.

Section 2 of the bill adds flexibility and shortens the time limit in situations where a party neglects to proceed after the service and filing of a note of issue. It replaces the present CPLR 3404, which provides for automatic dismissal in cases where a case is removed from the trial calendar or unanswered on a clerk's calendar call and not restored within a year, with a new Rule 3404.

The proposed new Rule 3404 offers the court several options in cases where a party neglects to proceed or fails to answer a call of the calendar: striking pleadings or parts thereof, dismissal (apparently without the intermediate step of marking the case "off" the calendar), default judgment, order for an inquest, an order for completion of disclosure "where disclosure has not been completed and extraordinary need therefor is shown," marking the case off the calendar, imposing costs or sanctions, or "issue such other order as is just." In cases where the case is marked off the calendar, there is an automatic dismissal if it is not restored to the trial calendar within 90 days.

No doubt, these options are already available to the courts in the exercise of their inherent power to control their calendars and, no doubt, they are used despite the lack of specific authority in the CPLR. It seems useful, however, to spell them out and, in particular, to serve warning both that unreasonable failure to proceed or to answer a calendar call may result in dismissal without the intermediate step of marking the case "off" the calendar and that, if a case is marked "off" the calendar, it must be quickly restored.

While the first section of this bill appears to need some clarification, and the bill is neither perfect nor complete, the entire bill would, on the whole, be a salutary change in the right direction, increasing flexibility and reducing the time in which to restore cases to the trial calendar after they have been marked "off."

For the foregoing reasons, this bill is APPROVED.

Person Who Prepared the Report: Jill Nagy, Esq.

Chair of the Committee: Paul H. Aloe, Esq.