Practice point: Plaintiff's motion to vacate the order of
dismissal should have been granted since, whether the dismissal was pursuant to
CPLR 3216(b)(3) or CPLR 3126, it did not comply with statutory requirements.
The case was marked dismissed after plaintiff failed to comply with a status
conference order directing him to serve and file a note of issue within seven
days. That order did not comply with the requirements of CPLR 3216(b), in that
plaintiff was not given 90 days to file a note of issue, and the order did not
contain a statement that a default in
complying with the demand will serve as a basis for a motion for dismissal as
for unreasonably neglecting to proceed. Since there was no motion pursuant to
CPLR 3216(b)(3), or notice to plaintiff, the case could not be dismissed for
failure to prosecute.
Student note: The status conference order is not appealable as of right because it is not an order which determined a motion made upon notice.
Case: Armstrong v. B.R. Fries & Assoc., Inc., NY Slip Op 04071 (1st Dept. 2012).
Here is the decision.
Tomorrow’s issue: ‘Falling object’ liability.
