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Current Developments in the Commercial Divisions of the
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Posted: September 5, 2018

Dismissal for Failure to Prosecute Vacated for Failure to Give Required Notice

On August 22, 2018, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Bastelli, 2018 NY Slip Op. 05822, vacating a dismissal for failure to prosecute for failure to give the required notice, 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 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 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. Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was no indication that the plaintiff’s counsel was present at the status conference at which the court issued the conditional order of dismissal, nor was there evidence that the order was ever properly served upon the plaintiff. In the absence of proper notice, the court was without power to dismiss the action for the plaintiff’s failure to comply with the conditional order of dismissal. Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review. Accordingly, the Supreme Court should have granted the plaintiff’s motion to vacate the order dated October 3, 2013, and to restore the action to the active calendar.

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

It happens from time-to-time that a plaintiff will bring an action but then fail actively to pursue it. This decision is about the rules a defendant must follow to get such an action dismissed. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding what to do it a plaintiff has failed to prosecute a lawsuit.

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