Commercial Division Blog

Posted: April 30, 2019 / Categories Commercial, Court Rules/Procedures, Motion to Dismiss; Motion for Judgment on the Pleadings

Court Should Not Have Sua Sponte Dismissed Action for Want of Prosecution

On April 10, 2019, the Second Department issued a decision in Marinello v. Marinello, 2019 NY Slip Op. 02697, holding that trial court should not have sua sponte dismissed an action for want of prosecution, explaining:

The Supreme Court should not have, in effect, pursuant to CPLR 3216, sua sponte, dismissed the amended complaint, as the statutory preconditions to dismissal were not met. A court cannot dismiss an action, sua sponte, pursuant to CPLR 3216(a) unless the conditions set forth in CPLR 3216(b) have been met, including the requirement that: the court or party seeking such relief shall have served a written demand 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 day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Moreover, the court should not have administratively dismissed the amended complaint without further notice to the parties.

(Internal quotations and citations omitted).

If a plaintiff does not actively pursue its claims, they can be dismissed. However, as this decision shows, there are special rules governing when a claim can be dismissed for failure to prosecute it. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding a plaintiff's failure to prosecute a claim.