Thursday, September 10, 2015

CPLR 3216 and dismissal

Practice point:  Pursuant to the statute, a court may dismiss the complaint for want of prosecution only after the court has issued an order directing, or the defendant has served the plaintiff with a written notice demanding, that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the order or demand, and also stating that the failure to comply with the order or demand will serve as the basis for a motion to dismiss the action.

Student note:  Since CPLR 3216 is a legislative creation and not part of a court's inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint.

Case:  Amos v. Southampton Hosp., NY Slip Op 06700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The emergency doctrine.