senate Bill S5073

Relates to want of prosecution

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 08 / May / 2013
    • REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • REFERRED TO JUDICIARY
  • 29 / Apr / 2014
    • 1ST REPORT CAL.423
  • 30 / Apr / 2014
    • 2ND REPORT CAL.
  • 05 / May / 2014
    • ADVANCED TO THIRD READING
  • 12 / May / 2014
    • SUBSTITUTED BY A9075

Summary

Relates to want of prosecution.

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Bill Details

See Assembly Version of this Bill:
A9075
Versions:
S5073
Legislative Cycle:
2013-2014
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R3216, CPLR

Sponsor Memo

BILL NUMBER:S5073

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to want of prosecution

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

This measure is proposed in response to widespread complaints from the
bar concerning CPLR 3216, which governs want of prosecution in a civil
matter. Rule 3216 has not been amended since 1978 - before
implementation of the current IAS system, preliminary conferences,
compliance conferences and certification orders. Simply put, the
language of rule 3216 is out-of-sync with current, well-established
facets of civil practice.

Our Advisory Committee has undertaken an extensive analysis of the
practice pursuant to rule 3216 and considered possible amendments.
Since 2004 the Committee has recommended a measure which would amend
both rule 3216 and rule 3404. As detailed in the Court of Appeals'
recent decision in Cadichon v. Facelle, 18 N.Y.3d 230 (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 rule 3216 is further
complicated by the confusion that results 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 rule 3216(a) the requirement that a
dismissal order from the court may only be "with notice to the
parties." It would amend rule 3216(b)(2) to clarify the time line by
requiring that no dismissal shall be directed unless one year has
elapsed since the joinder of issue or six months since the issuance of
the preliminary court conference order where such an order has been
issued, whichever is later. Finally, the measure would amend rule
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, our Committee believes that the balance encompassed in
the original statute should remain intact. Further, 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.


This measure would have no fiscal impact on the State. It would take
effect immediately and shall apply to judgments or orders appealed
from on or after that date.

Legislative History:

None. New proposal.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5073

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to want of
  prosecution

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (a) and (b) of rule 3216 of the civil practice
law and rules, as added by chapter 770 of the laws of 1967, paragraph  3
of  subdivision  (b)  as  amended  by chapter 4 of the laws of 1978, are
amended to read as follows:
  (a) Where a party unreasonably neglects to  proceed  generally  in  an
action  or otherwise delays in the prosecution thereof against any party
who may be liable to a separate judgment, or unreasonably fails to serve
and file a note of issue, the court,  on  its  own  initiative  or  upon
motion,  WITH NOTICE TO THE PARTIES, may dismiss the party's pleading on
terms. Unless the order specifies otherwise, the dismissal is not on the
merits.
  (b) No dismissal shall be directed under any  portion  of  subdivision
(a)  of  this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been  complied
with:
  (1) Issue must have been joined in the action;
  (2)  One  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;
  (3) The court or party seeking such relief, as the case may be,  shall
have  served  a written demand by registered or certified mail requiring
the party against whom such relief is sought to  resume  prosecution  of
the  action  and  to  serve  and file a note of issue within ninety days

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09755-01-3

S. 5073                             2

after receipt of such demand, and further stating 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 unrea-
sonably  neglecting  to proceed.   WHERE 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.
  S 2. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become law.

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