Cohn v. Borchard Affiliations

• Decision Date: 14 May 1968
• Citation: 30 A.D.2d 74,289 N.Y.S.2d 771
• Parties: Viola COHN and Erwin W. Cohn, Plaintiffs-Respondents, v. BORCHARD AFFILIATIONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 771

289 N.Y.S.2d 771

30 A.D.2d 74

Viola COHN and Erwin W. Cohn, Plaintiffs-Respondents, v. BORCHARD AFFILIATIONS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 14, 1968.

Lewis I. Wolf, New York City, of counsel (Henry Wolfman, New York City), for appellant.

Abraham W. Sereysky, New York City, for respondents.

Before STEVENS, J.P., and EAGER, STEUER, TILZER and McNALLY, JJ.

STEUER, Justice:

Special Term denied defendant's motion to dismiss the action for lack of prosecution upon the ground that no 45-day notice pursuant to CPLR 3216 was served. Were it not for the rule it would not be arguable that the unreasonable neglect to prosecute the action shown by this record would mandate dismissal (Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186). Defendant argues that despite the statute the same relief should be accorded, basing its argument on the contention that the statute is unconstitutional.

While the constitutionality of the statute has been raised before (see Commercial Credit Corp. v. Lafayette Lincoln-Mercury, 17 N.Y.2d 367, 373, 271 N.Y.S.2d 212, 216, 218 N.E.2d 272, 274), it has not been found necessary to pass on the question. in may fairly be said, therefore, that prior adjudications on the section and its predecessors recognized the existence of a possible constitutional question but were never required to reach it. As constitutional questions are not decided where an alternative ground of decision is present (Matter of Peters v. New York City Housing Auth., 307 N.Y. 519, 527--528, 121 N.E.2d 529, 531--532; Matter of Keogh v. Wagner, 20 A.D.2d 380, 247 N.Y.S.2d 269, affd. 15 N.Y.2d 569, 254 N.Y.S.2d 833, 203 N.E.2d 298), constitutionality of the rule cannot be implied from such holdings.

Rule 3216 provides, flatly, that the court, either on its own motion or that of a party, may not dismiss an action for failure to prosecute unless and until issue has been joined and one year has elapsed, and, further a notice served that prosecution is to be resumed and a note of issue served in 45 days. The vice of the section lies in the fact that it can deprive the court of control of its own calendars.

'It is ancient and undisputed law that courts have an inherent power over the control of their calendars, and the disposition of business before them, including the order in which disposition will be made of that business.' (Plachte v. Bancroft Inc., 3 A.D.2d 437, 438, 161 N.Y.S.2d 892, 893.) This proposition is axiomatic and citation of the authority is only justified because the felicity of expression bears repetition. As the power is inherent, it is not dependent on legislative authorization (Riglander v. Star Company, 98 App.Div. 101, 90 N.Y.S. 772, affd. 181 N.Y. 531, 73 N.E. 1131). It would follow that the creation of the court grants to it the inherent powers. If the court is, as in this instance, constitutionally created, these powers cannot be limited except by constitutional means. Legislative power to regulate procedure does not go to the extent of permitting interference with inherent powers (Riglander v. Star Company, supra, at 108, 90 N.Y.S. at 777; Colon v. Lisk, 153 N.Y. 188, 195, 47 N.E. 302, 304).

It would therefore appear that whether or not a restriction on the court's power to dismiss for lack of prosecution is valid depends on whether that power is an inherent one, i.e., one such as the power to regulate its calendar, so necessary to its proper functioning as to be irrefutably implied. We believe that it is, and that it has always been, so regarded. From the earliest times the English courts enjoyed this power (see 3 Blackstone Com. 296, quoted in Herring v. Poritz, 6 Ill.App. 208, 211). All powers of the English courts were vested in the New York Supreme Court (see Matter of Steinway, 159 N.Y. 250, 255, 53 N.E. 1103, 1104, 45 L.R.A. 461) and since 1691 the power has been exercised. Courts of other jurisdictions have described it as an inherent power (State ex rel. Croker v. Chillingworth, 106 Fla. 323, 326, 143 So. 346) and have so held without employing the particular word. (See note to Grigsby v. Napa County, 36 Cal. 585, in 95 Am.Dec. 213, 215.) The Federal courts, which exercise a more stringent method of control by dismissing on the merits (Fed.R.Civ.P., Rule 41(b)) do so by virtue of inherent power. Very recently the English Court of Appeal had this to say in regard to dismissal of an action for excessive delay: 'This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit it.' (Allen v. Sir Alfred McAlpine & Sons, 1968, 1 All E.R. 543, 547.) Moreover, dismissal for lack of prosecution has been recognized as one of the important tools in calendar control, itself an inherent power (Gino v. Syracuse Memorial Hospital, 23 A.D.2d 964, 965, 261 N.Y.S.2d 523, 524).

The condition resulting from the restrictive factors of rule 3216 is far more serious than the foregoing might portend. It is not merely a question of trespass by one branch of the government on another and the resultant pique or resentment. The courts in this Department are plagued by a substantial number of cases which are instituted with no intention that they will ever be brought to trial (see Plachte v. Bancroft Inc., supra, 3 A.D.2d at 442, 161 N.Y.S.2d at 897). If the original purpose of bringing the action, settlement, is not realized, the case is allowed to remain without further advancement or with a minimum of activity designed to conceal the reluctance to put it to issue. It is these cases that clog the calendars and interfere with the prompt disposition of genuinely contested issues (Gino v. Syracuse Memorial Hospital, supra). But while the attorneys who institute these actions have little or no intention of ever disposing of them by trial, they are even more averse, when the nature of the case is revealed by their casual attention to it, to have it dismissed. As long as the case is viable, it is a potential source of some recovery, and this because of considerations other than its merit. It is these lawyers who, after several unsuccessful efforts, succeeded in procuring the enactment of the present rule (see Commercial Credit Corp. v. Lafayette Lincoln-Mercury, supra, 17 N.Y.2d at 370, 271 N.Y.S.2d at 213). ^* As a result the court is deprived of a traditional procedure of material significance in the management of its calendars.

It may be argued that the rule does not take away the inherent power but merely regulates its use. The argument is defeated by a mere perusal of the terms of the rule. The power is so curtailed that it is for all practical purposes abolished. Delay prior to joinder of issue and for a year thereafter is inviolate. And thereafter a procrastinator must have 45 days' written notice that a note of issue (certainly a token show of activity) may be required of him. A similar provision for notice before dismissal could be sought was claimed to exist in England by virtue of an interpretation of the rules adopted by solicitors. The consequent situation apparently plagued the english courts and it was met with characteristic directness:

'Where after action had been brought it became apparent to the plaintiff's solicitor that the action had little prospect of success, he took no further step in the action and it was allowed to remain dormant ever after on the tacit understanding that the defendant would not seek an order for his costs by applying to have the action dismissed. It was contended that if the defendant wished to depart from this understanding, the plaintiff should receive warning in time to enable him to do likewise and to revive the action. * * * Let us not mince words. This tacit understanding, if it exists, is based at best on bluff, at worst on blackmail. The sooner it is abandoned the better. To misuse the rules of court for such a purpose is an abuse of its process.' (Diplock L.J., in Allen v. Sir Alfred McAlpine & Sons, supra, at 555.)

Indubitably the purpose to emasculate the power would be realized in the rule. The net result is that the courts, charged with a duty to administer the disposition of litigated cases with all the promptitude...