CPLR § 205 New action by plaintiff
CPLR R. 3216 Want of prosecution
Monday's New York Law Journal will have David Siegel's (of "Siegel, New York Practice" fame) article, Amendment Bars 'Neglect to Prosecute' Dismissal. In it he discusses a recent amendment to CPLR § 205(a) will have an effect on motions to dismiss pursuant to CPLR R. 3216.
Here is part of the article, you can read the rest in Monday's Law Journal or in the online edition today:
Chapter 156 of the Laws of 2008 was signed into law on July 7, 2008, took effect immediately, and is in effect now.
Most interesting is that it is not an amendment of CPLR 3216, the CPLR's explicit provision on the neglect to prosecute, but of CPLR 205(a), the statute that gives a plaintiff a new six-month period in which to commence a new action when a non-merits dismissal of an earlier one occurs and the original statute of limitations has already expired. The problem aimed at by the amendment is that the neglect to prosecute dismissal is an exception to CPLR 205(a), which does not offer its six months when want of prosecution is the reason for the prior dismissal.
The neglect to prosecute dismissal is not ordinarily on the merits and therefore doesn't give rise to a res judicata defense if the plaintiff brings a new action on the claim. The statute of limitations is and has almost always been the problem. If the statute has expired when the neglect to prosecute occurs, a new action is barred by time and CPLR 205(a) offers no lifeline.1
The amendment adds to CPLR 205(a) the instruction that a court making a neglect to prosecute dismissal must:
set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.
Presumably a neglect to prosecute dismissal made without that showing - that explicit finding of "a general pattern of delay" - will no longer disqualify the case for the six-month period for the new action, which is sterling news for plaintiffs. Tentatively, anyway.
There are lessons here for all litigation participants: judges, plaintiffs and defendants, especially in view of the fact that there exist a variety of dismissals based on specific misconduct - failure to serve a complaint, answer a calendar call, pick a jury, submit to pretrial disclosure, etc. - that can also qualify as "neglect to prosecute" dismissals under CPLR 205(a) and thus not earn the six months for a new action.
There are a number of "neglect to prosecute" dismissals, in other words, that are not predicated on the "neglect to prosecute" statute, CPLR 3216. The "neglect to prosecute" reference in CPLR 205(a) is a galaxy of its own, in which CPLR 3216 is but one planet.
The lesson to judges now faced directly with a CPLR 3216 motion to dismiss is to grant it only when satisfied that the plaintiff has been guilty of "a general pattern of delay,",and only if the judge is prepared to "set forth on the record the specific conduct constituting the neglect." Dismissing without that record, even if denominating the dismissal as one for "neglect to prosecute" or using a like phrase, will not deny the plaintiff the cherished gift of the CPLR 205(a) six months.
A "general pattern of delay" is the sine qua non, with a written record detailing the plaintiff's "specific conduct" that justifies the "general pattern of delay" conclusion.
Apparently just one or two missteps or delays by a plaintiff won't do the job. There's got to be a "pattern" of dilatory conduct.
The article goes on to discuss ways for defendants to make sure their CPLR R. 3216 motions are effective in light of the "general pattern of delay" requirement as well as whether CPLR § 205(a) will have an impact on CPLR R. 3404 motions. Towards the end, Mr. Siegal has a very interesting discussion regarding the history of CPLR R. 3216.
Look for more on this article later.
All the bold is mine.
