The First Department vacated an earlier judgment dismissing the action for failure to prosecute, in Feders v. Lamprecht, which was decided on August 2, 2007. The court found no intention to abandon the action, and defendants alleged no prejudice as a result of the delay. The motion court's sua sponte dismissal was based on plaintiff's counsel's failure to appear at a discovery compliance conference (22 NYCRR 202.27[b]), which apparently was the first such conference scheduled, and which was plaintiff's only default. However, plaintiff submitted evidence that counsel's absence from the conference was the result of injuries suffered in an automobile accident several weeks before the conference date, and defense counsel had been so advised. The court found that this was a reasonable excuse for the default. The court also found that any delay in prosecuting was minimal, given that only 11 months had elapsed between filing of the action and dismissal, and only 41 days from joinder of issue to dismissal. Furthermore, plaintiff promptly sought vacatur.

The court also said that the motion court's dismissal violated the provisions of CPLR 3216(b). Specifically, the record shows that two of the conditions necessary for dismissal were not met: passage of one year since joinder of issue (CPLR 3216[b][2]), and service of a written demand on plaintiff to resume prosecution and to serve and file a note of issue within 90 days of receipt of the demand (CPLR 3216[b][3]).