|Assembly Actions - Lowercase
Senate Actions - UPPERCASE
|Sep 23, 2014||
|Sep 11, 2014||
delivered to governor
|May 12, 2014||
returned to assembly
3rd reading cal.423
substituted for s5073
|May 12, 2014||
substituted by a9075
|May 05, 2014||
advanced to third reading
|Apr 30, 2014||
2nd report cal.
|Apr 29, 2014||
1st report cal.423
|Jan 08, 2014||
referred to judiciary
|May 08, 2013||
referred to judiciary
senate Bill S5073Signed By Governor
Relates to want of prosecution
Archive: Last Bill Status Via A9075 - Signed by Governor
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed by Governor
view actions (12)
May 12, 2014 - floor VoteA9075590floor59Aye0Nay0Absent2Excused0Abstained
show floor vote details
Floor Vote: May 12, 2014aye (59)
Apr 29, 2014 - Judiciary committee VoteS5073220committee22Aye0Nay1Aye with Reservations0Absent0Excused0Abstained
- show floor vote details
S5073 - Bill Details
- See Assembly Version of this Bill:
- Law Section:
- Civil Practice Law and Rules
- Laws Affected:
- Amd R3216, CPLR
S5073 - Bill Texts
Relates to want of prosecution.
view sponsor memo
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
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.
None. New proposal.
view full 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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