Practice point: CPLR 3216 permits a court to dismiss an action for want of prosecution
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 a basis for a motion to dismiss the action.
Student note As
CPLR 3216 is a legislative creation and not part of a court's inherent
power, a court may not dismiss an action for want of prosecution where
the plaintiff was not served with the requisite 90-day demand pursuant
to CPLR 3216(b).
Case: Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Standing in a mortgage foreclosure action.
