Practice point: Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after plaintiff has been served with a written demand that plaintiff resume prosecution and serve and file a note of issue within 90 days after receiving the demand.
Practitioners should note that the demand must state that plaintiff’s noncompliance will serve as the basis for a motion to dismiss.
Case: Rose v. Aziz, NY Slip Op 02346 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Evidentiary proof.
