Practice point: The defendant's motion to dismiss the complaint based on the
inordinate and prejudicial delay in prosecuting the action should was denied. The court could not dismiss this pre-note of issue action on the ground of a general lack
of prosecution since the plaintiff had not received a 90-day demand
pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a
note of issue.
Student note: CPLR 3216 permits a court to dismiss an action for failure
to prosecute only after the court or the defendant has served the
plaintiff with a written demand requiring the plaintiff to resume
prosecution of the action and to serve and file a note of issue within
90 days after receipt of the demand, and also stating that the failure
to comply with the demand will serve as the basis for a motion to
dismiss the action.
Case: Armouth-Levy v. New York City, NY Slip Op 05551 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Summary judgment in a slip and fall case.
