Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 26, 2020

Court Erred By Dismissing Action Sua Sponte for Failure to Prosecute

On November 12, 2020, the Second Department issued a decision in Wells Fargo Bank, N.A. v. Brown, 2020 NY Slip Op. 06576, holding that a court erred by sua sponte dismissing an action for failure to prosecute, explaining:

In this mortgage foreclosure action, the Supreme Court, sua sponte, issued a conditional order of dismissal dated January 17, 2018 (hereinafter the January 2018 order), indicating that more than one year has elapsed since the joinder of issue and the plaintiff has unreasonably neglected to prosecute this action. In the same order, the court indicated that it was directing dismissal of the complaint pursuant to CPLR 3216, unless the plaintiff files a note of issue or otherwise proceeds by motion for entry of judgment within 90 days from the date hereof. The plaintiff failed to comply with the January 2018 order; instead, in April and June 2018, the plaintiff filed successive motions for the appointment of a new referee and, in May 2018, moved, inter alia, to vacate the January 2018 order. In an order dated December 5, 2018, the court, in effect, denied the three motions. The plaintiff appeals.

A court may not dismiss a complaint for want of prosecution pursuant to CPLR 3216 on its own initiative unless certain conditions precedent have been complied with, including the requirement that where a written demand to resume prosecution of the action is made by the court the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.

Here, the Supreme Court should have granted the plaintiff’s motion, among other things, to vacate the January 2018 order, as that order failed to set forth the specific conduct constituting neglect by the plaintiff.

(Internal quotations and citations omitted).

If you are served with a complaint and fail to answer, the court can enter judgment against you: a default judgment. Similarly, if you serve someone with a complaint but then neglect to pursue your case, it could be dismissed for failure to prosecute. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether an action can be dismissed for failure to prosecute.

Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.

View posts