Summary
The Appellate Division, First Department, unanimously affirmed an order dismissing the complaint against 601-609 West 175th St. Corp. for failure to prosecute under CPLR 3216. The court held that plaintiff failed to timely file a note of issue, did not establish a justifiable excuse for the delay, and was not prejudiced by the lower court's reference to CPLR 3126 as a scrivener's error.
Topics
Practice areas
Questions Presented
- Whether Supreme Court properly exercised its discretion in dismissing the action for failure to prosecute under CPLR 3216.
- Whether plaintiff established a justifiable excuse for failing to timely file the note of issue or seek an extension.
- Whether Supreme Court's reference to CPLR 3126, rather than CPLR 3216, rendered the dismissal order defective.
Holdings
- Supreme Court providently exercised its discretion in dismissing the action for failure to prosecute because defendant satisfied CPLR 3216's prerequisites and plaintiff failed to timely file a note of issue or obtain an extension.
- Plaintiff's conclusory and unsubstantiated assertion of law-office failure did not establish a justifiable excuse for the delay, particularly in light of her history of dilatory litigation conduct.
- The trial court's scrivener's error referring once to CPLR 3126 instead of CPLR 3216 did not render the order defective because the order repeatedly referred to and quoted CPLR 3216 and clearly applied the correct statute's standards.
Factual background
The trial court served plaintiff with an order requiring her to file a note of issue within 90 days and warning that failure to do so would result in dismissal. Plaintiff neither timely filed the note of issue nor sought an extension, and filed it only after defendant moved to dismiss, nearly two years after the court's order and six months after defendant served the order a second time. Plaintiff attributed the delay to law-office failure involving firm relocations and staffing changes, but the court found the excuse conclusory and unsubstantiated and noted her extensive history of dilatory litigation conduct.
Procedural history
Supreme Court issued an order on November 15, 2023, warning plaintiff that failure to file a note of issue within 90 days would result in dismissal under CPLR 3216. Plaintiff did not timely file the note of issue or move for an extension. After defendant moved to dismiss, plaintiff filed the note of issue, but Supreme Court dismissed the action; the Appellate Division unanimously affirmed.