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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 5, 2021

Court Erred in Dismissing Action for Failure to Prosecute

On December 23, 2020, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Henry, 2020 NY Slip Op. 07863, holding that a trial court erred in dismissing an action for failure to prosecute, explaining:

CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with. As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement 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. While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216, the conditional order of dismissal here was defective in that it failed to state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the action for failure to prosecute. The Supreme Court should not have administratively dismissed the action without further notice to the parties and without benefit of further judicial review. Accordingly, the court should have granted the plaintiff’s motion to vacate the conditional order of dismissal, and to restore the action to the active calendar.

(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.

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