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Posted: June 27, 2017

Dismissal for Failure to Prosecute Vacated Because No 90-Day demand to File Note of Issue Made

On June 21, 2017, the Second Department issued a decision in Atmara, Inc. v. Panoramic Ace Properties, Inc., 2017 NY Slip Op. 05060, vacating a dismissal for failure to prosecute because no 90-day demand to file a note of issue was made, explaining:

While the failure to comply with a court order directing the filing of a note of issue can, in proper circumstances, provide the basis for dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. A 90-day demand to file a note of issue is one of the statutory preconditions.

Contrary to the defendants’ contentions, the so-ordered stipulation dated November 3, 2014, which extended the plaintiffs’ time to file the note of issue until January 8, 2015, superseded the compliance conference order dated July 11, 2012. As the so-ordered stipulation dated November 3, 2014, did not advise the plaintiffs that the failure to comply with that deadline would serve as a basis for a motion to dismiss the action, it cannot be deemed a 90-day demand. Furthermore, the complaint could not have properly been dismissed pursuant to CPLR 3126 based upon the plaintiffs’ failure to comply with court-ordered discovery since there was no motion requesting that relief. Accordingly, the plaintiffs’ motion to vacate the dismissal of the complaint and restore the action to the court’s calendar should have been granted.

(Internal quotations and citations omitted) (emphasis added).

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