Wednesday, August 27, 2014

Dismissal pursuant to CPLR 3216.

Practice point:  CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.