Chase v. Scavuzzo

• Decision Date: 28 December 1995
• Citation: 638 N.Y.S.2d 587,87 N.Y.2d 228,661 N.E.2d 1368
• Parties: , 661 N.E.2d 1368 Sydney J. CHASE, Appellant, v. Julius J. SCAVUZZO et al., Doing Business as Scavuzzo & Hart, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 587

638 N.Y.S.2d 587

87 N.Y.2d 228, 661 N.E.2d 1368

Sydney J. CHASE, Appellant, v. Julius J. SCAVUZZO et al., Doing Business as Scavuzzo &amp Hart, Respondents.

Court of Appeals of New York.

Dec. 28, 1995.

APPEAL, by permission of the Court of Appeals, from so much of an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 8, 1994, as modified, on the law an order of the Supreme Court (Edward W. McCarty III, J.), entered in Nassau County, insofar as it denied those branches of a motion by defendants to strike plaintiff's note of issue and dismiss the complaint. The modification consisted of granting those branches of defendants' motion to strike plaintiff's note of issue and dismiss the complaint.

Chase v. Scavuzzo, 207 A.D.2d 372, 615 N.Y.S.2d 738, reversed.

[87 N.Y.2d 229] Hal Ian Wolsky, Garden City, for appellant.

Julius J. Scavuzzo, Mineola, respondent pro se, and for another, respondents.

OPINION OF THE COURT

SMITH, Justice.

The issue presented by this appeal is whether the Appellate Division erred in dismissing plaintiff's complaint for general delay even though defendants failed to serve plaintiff with a 90-day demand to file and serve a note of issue as required by CPLR 3216. We reverse the order of the Appellate Division, to the extent appealed from.

The Present Case

Plaintiff commenced an action for attorneys' fees earned prior to plaintiff's suspension from the Bar, and for breach of contract and conversion for defendants' alleged failure to pay for various law books and furniture. Plaintiff subsequently moved for summary judgment. By order dated August 15, 1989, the Supreme Court denied the summary judgment motion and directed plaintiff to file and serve a note of issue as follows:

"This motion by the plaintiff seeking summary judgment is denied. The existence of the agreement upon which the plaintiff's claims are based is flatly contradicted by the opposing papers. The plaintiff is directed to file and serve a Note of Issue."

Plaintiff served, but never filed, a note of issue dated October 5, 1989. A second note of issue, dated June 12, 1992, was both served and filed and allegedly received by the defendants on August 7, 1992. On September 1, 1992, defendants moved to strike the note of issue and to dismiss the complaint on the grounds that plaintiff did not, in 1989, comply with Supreme Court's order to file a note of issue, and that plaintiff abandoned the lawsuit by failing to take any action for three years. Defendants also sought sanctions against plaintiff and plaintiff's attorneys. The Supreme Court denied defendants' motion in all respects, noting, inter alia, that notwithstanding plaintiff's delay, defendants had failed to comply with CPLR 3216.

The Appellate Division modified the Supreme Court order by granting the motion to strike the note of issue and dismissing the complaint, and denying the request for sanctions. The Appellate Division characterized plaintiff's failure to comply with the August 15, 1989 order to file a note of issue, until August 7, 1992, as general delay. The Appellate Division held that because courts possess the inherent power to dismiss actions for general delay, defendants' failure to serve a 90-day demand to file and serve a note of issue, as required by CPLR 3216(b), did not bar dismissal of plaintiff's complaint.

The plain language of CPLR 3216 provides that no court may dismiss an action, and no party may make a motion seeking dismissal of an action unless a written demand has been served on the party prosecuting the action to serve and file a note of issue within 90 days after receipt of such demand. The demand must also state that failure to serve and file a note of issue within the 90-day period may serve as a basis for a motion to dismiss the action (CPLR 3216[b][3]. However, the statute further provides that:

"After an action has been placed on the calendar by the service and filing of a note of issue, with or without any such demand provided, * * * the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to the said service and filing of such note of issue" (CPLR 3216[d].

We conclude that the August 15, 1989 order to file and serve a note of issue did not relieve defendants of serving plaintiff with a written 90-day demand, as required by CPLR 3216(b)(3), in the event that plaintiff did not serve and file the note of issue.

History and Background of CPLR 3216

Prior to 1964, CPLR 3216 did not require that a demand to serve and file a note of issue be served before a court, on its own initiative or upon motion, could dismiss an action for unreasonable neglect to proceed. CPLR 3216, which went into effect on September 1, 1963 (L.1962, ch. 308), originally provided:

"Where a party unreasonably neglects to proceed in the action against any party who may be liable to a separate judgment, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits".

On December 10, 1963, approximately three months after CPLR 3216 went into effect, the First Department decided Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186. Sortino identified deficiencies in a number of "excuses" generally proffered to explain delays in prosecuting actions and concluded that "[a]ny unreasonable delay, depending upon the nature of the case, the degree of merit, and the particular difficulties which the litigating plaintiff faced, may support dismissal" (Sortino, supra, at 28, 245 N.Y.S.2d 186). The Sortino action was dismissed for failure to prosecute because "plaintiffs rested on their oars for about a half-year, a period too long in the light of the lack of merits and the lapse of time since joinder of issue" (Sortino, supra, at 33, 245 N.Y.S.2d 186).

Because a large number of cases were being dismissed under Sortino for failure to prosecute, Sortino triggered a "massive" movement by the plaintiffs' bar to amend CPLR 3216 (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3216, at 630). The 1964 legislation (L.1964, ch. 974) provided that:

1. The court on its own motion or the motion of a party could dismiss an action where a party unreasonably neglected to proceed,

2. Such a dismissal was not on the merits,

3. No motion to dismiss could be made until six months after joinder of issue,

4. No motion to dismiss could be made unless defendant served a written demand requiring that plaintiff serve and file a note of issue and providing further that a failure to comply with the demand within 45 days after service would serve as a basis for a motion by defendant to dismiss for "unreasonably neglecting to proceed,"

5. If plaintiff served and filed the note of issue within 45 days after service of the demand the motion to dismiss would be denied,

6. If plaintiff failed to serve and file the note of issue within 45 days of the demand, the motion had to be granted unless plaintiff showed "justifiable excuse for delay and a good and meritorious cause of action" (see also, Thomas v. Melbert Foods, 19 N.Y.2d 216, 219-220, 278 N.Y.S.2d 836, 225 N.E.2d 534; Brown v. Weissberg, 22 A.D.2d 282, 284, n., 254 N.Y.S.2d 628).

The 1964 amendment spawned additional litigation.

In 1965, this Court held that motions to dismiss under CPLR 3216, as amended in 1964, could not be brought unless a demand to serve and file the note of issue had been served (Fischer v. Pan Am. World Airways, 16 N.Y.2d 725, 262 N.Y.S.2d 108, 209 N.E.2d 725; Salama v. Cohen, 16 N.Y.2d 1058, 266 N.Y.S.2d 131, 213 N.E.2d 461). However, less than a year later, we distinguished between the authority of courts to dismiss an action for general delay, and pursuant to CPLR 3216, which required service of a demand before an action in which a plaintiff has failed to serve and file a note of issue could be...