R 3216.Want of prosecution.

This rule allows the court flexibility in determining what constitutes unreasonable neglect to proceed and whether to dismiss for that reason. It is based on CPA § 181.

A survey of other jurisdictions reveals two different approaches to the subject of dismissal for want of prosecution. The approach of the jurisdictions following Federal rule 41(b) is essentially that of former § 181: a general provision allowing dismissal in the court’s discretion for unreasonable neglect to proceed. Others, such as England and California, enumerate several specific situations which call for dismissal either absolutely or in the court’s discretion. See Cal Code Civ Proc Ann §§ 581(a), 583 (West 1954); Eng Rules of the Sup Ct, O 27, r 1, O 30, r 1(3), O 31, r 21, O 36, rr 12, 32 (The Annual Practice 1956). The former approach has been adopted in this rule. A flexible rule is needed to enable the court adequately to deal with the multifarious situations which might amount to want of prosecution and the numerous factors that might excuse a delay. Furthermore, an enumeration of some situations might be taken to imply an exclusion or de-emphasis of others, and the stress on the enumerated ones could multiply wasteful pro forma dismissals that would later be nullified.

There did exist in New York a few provisions authorizing dismissal in particular situations. Some of these are better treated in the areas to which they particularly relate. Thus, RCP 302(2), which required that a cause be deemed abandoned if marked “off” or struck from the trial calendar or unanswered on the clerk’s calendar call and not restored within one year, has been treated under calendar practice as CPLR rule 3404. RCP 302(1), which authorized dismissal if the plaintiff failed without good cause to enter a default judgment within one year, has been treated with default judgments in CPLR § 3215.

RCP 156 provided for dismissal when the plaintiff had failed to serve and file a note of issue within six months after joinder or before later cases had been reached on the calendar of a term for which the note of issue could have been filed. The provision was drafted before the readiness rules; they will often prevent filing a note of issue as early in the litigation as under former practice.

The committee perceives no reason for a rule so rigid in detail and this provision has been omitted, leaving the matter of dismissal for delay in serving note of issue to the court’s discretion under this rule. The provisions which concerned dismissal and default in the last sentence of § 433 are omitted as redundant since they are amply covered by the provisions of CPLR § 3215(a) and this rule. See also notes to rule 3212.

CPA 180, which provided for dismissal for want of prosecution by failing to serve an indispensable or conditionally necessary party, has been omitted as unnecessary, since the same result is achieved by the motion authorized in CPLR § 1003. The word “party” has been substituted for “plaintiff” to make it clear that the rule applies as well to parties prosecuting counterclaims, crossclaims or third-party claims. The first sentence makes explicit certain matters that were formerly covered by case law, i.e., that notice is required, that the court may dismiss on its own motion and that it may impose terms. The terms contemplated may include payment of the costs and reasonable attorney’s fees of the moving party, as well as any terms that may be imposed when a claim is voluntarily dismissed. See notes to CPLR § 3217. This would prevent litigants from circumventing the voluntary dismissal provisions by simply abandoning a claim.

The second sentence of this rule represents former law. CPA § 482. Its emphasis is contrary to that of Federal rule 41(b), which provides that the dismissal is on the merits unless otherwise specified.

Under article 2 of the new CPLR dealing with statutes of limitations, the effect on the running of the statute of the institution of an action and its dismissal for want of prosecution remains the same as under former law: as to the dismissed claim, the statute runs during the period that the action was pending, with no extension of time (see CPA § 23) but the statute is tolled as to any defenses or counterclaims that fall with the dismissal. NY CPA § 26. The provision which authorized a referee to dismiss for want of prosecution (CPA § 469) has been retained; consequently, no such provision is made in this rule.

2014 Recommendations of the Advisory Committee on Civil Practice.

In this measure the Committee responds to widespread complaints from the bar concerning CPLR 3216, which governs want of prosecution in a civil matter. Section 3216 has not been amended since 1978 and those amendments preceded the current IAS system, preliminary conferences, compliance conferences and certification orders. Simply put, the language of 3216 is out-of-sync with current, well-established facets of civil practice.

The Committee has undertaken an extensive analysis of the practice pursuant to 3216 and considered possible amendments. Since 2004 the Committee has recommended a measure which would amend both 3216 and 3404. As detailed in the Court of Appeals’ recent decision in Cadichon v. Facelle, 18 N.Y.3d 230, 938 N.Y.S.2d 232 (2011), many courts automatically include a 90-day notice in a generic preliminary conference order the execution of which may result in an administrative dismissal of a civil action with no further notice to the parties. In addition, the practice under 3216 is further complicated by the confusion that erupts from the interplay between a 90-day demand, statutory disclosure requirements and the filing of a note of issue. The Committee believes, consistent with the decision in Cadichon, that the bench and bar would benefit from a statutory amendment which codifies a specific, simple roadmap and includes a red flag, formal notice to the parties of the threat of a dismissal. In many cases the parties are actively prosecuting or defending the matter and, given an opportunity to do so, would be prepared to establish that fact to the court, a result infinitely more beneficial to the litigants than an outright dismissal by the court clerk’s office.

This measure would add to 3216(a) the requirement that a dismissal order from the court may only be “with notice to the parties.” It would amend 3216(b)(2) to clarify the time line by requiring that no dismissal shall be directed unless [o]ne year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later.” Finally, the measure would amend 3216(b) (3) to add that “[w]here the written demand is served 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.” Importantly, the Committee believes that the balance encompassed in the original statute should remain intact. Further, the it believes that the court’s ability to sua sponte order dismissal should be preserved, with the addition of this amendment requiring that such order may only be made upon notice to the parties and not as an automatic dismissal because a pre-set deadline has passed.

Add, L 1967, ch 770, § 1, eff Sept 1, 1967; amd, L 1978, ch 4, §§ 1, 2, eff Sept 1, 1978; L 2014, ch 371, § 1, eff Jan 1, 2015.