Practice point: Where a party unreasonably neglects to proceed in an action or
otherwise delays in prosecuting the action, or unreasonably fails to serve and
file a note of issue, the court, on its own initiative or on a motion,
may dismiss the party's pleading on terms, pursuant to CPLR 3216[a]. . Before doing
so, the court or the party seeking such relief must serve a written
demand to resume prosecution and to serve and file a note of issue
within 90 days of receipt of such demand, and further advise that failure to do so may result in
dismissal of the action, pursuant to CPLR 3216[b][3]..
Student note: Pursuant to 22
NYCRR 202.21(a) and (b), an action will not be deemed ready for trial or inquest
unless a note of issue is first filed, accompanied by a certificate of
readiness stating that there are no outstanding requests for discovery
and the case is ready.
Case: Dutchess Truck Repair, Inc. v. Boyce, NY Slip Op 05768 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: A landowner's duty to warn.
