Commercial Credit Corp. v. Lafayette Lincoln-Mercury, Inc.

• Decision Date: 02 June 1966
• Docket Number: LINCOLN-MERCUR,INC
• Citation: 17 N.Y.2d 367,271 N.Y.S.2d 212,218 N.E.2d 272
• Parties: , 218 N.E.2d 272 COMMERCIAL CREDIT CORPORATION, Appellant, v. LAFAYETTE, et al., Defendants, and Louis Mintz, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 212

271 N.Y.S.2d 212

17 N.Y.2d 367, 218 N.E.2d 272

COMMERCIAL CREDIT CORPORATION, Appellant, v. LAFAYETTE LINCOLN-MERCURY, INC., et al., Defendants, and Louis Mintz, Respondent.

Court of Appeals of New York.

June 2, 1966.

Alfred L. Shiels, New York City, for appellant.

Sylvan D. Freeman, Brooklyn, for respondent.

DESMOND, Chief Judge.

Before September 1, 1964, CPLR 3216 read as follows: '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.' This was a 1962 rewrite of old section 181 of the Civil Practice Act. According to the revisers, who produced the CPLR effective September 1, 1963, the intention was then to devise a flexible rule to deal with the 'multifarious situations which might amount to want of prosecution and the numerous factors that might excuse a delay.' In December, 1963 the Appellate Division, First Department, handed down Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186, where a long opinion set out a number of rules or considerations as to dismissals of complaints for delay in prosecution. This decision was unsatisfactory to many lawyers specializing in sthe representation of in the representation of result of an ardent campaign the Legislature added to rule 3216 above quoted a long second paragraph, Leaving the first paragraph intact. The new second paragraph says that no motion to dismiss based upon the failure of the plaintiff to serve and file a note of issue shall be made or granted until at least six months after the joinder of issue and that no such motion on such a ground shall be made or granted unless the defendant shall have served on the plaintiff a written demand requiring the latter to serve and file a note of issue and in effect giving the plaintiff 45 days in which to do so. Under this new second paragraph, if the note of issue is served and filed by plaintiff within 45 days, the motion shall be denied but, if it is not so served and filed within 45 days, the court may grant the motion unless the plaintiff shows a good excuse for delay and a meritorious cause of action.

On this appeal, here by our leave, there is sharply presented the question as to whether the addition of the second paragraph of rule 3216 means that the first paragraph has in effect been eliminated, and that there is no longer any such concept as general delay and that the courts have in effect lost their power to dismiss actions for delay except pursuant to the strict formula of the second paragraph. We do not think such a result was intended and it would surely be inadvisable and contrary to all tradition. This idea is confirmed by the history of a statute passed by the 1965 Legislature, apparently at the request of the same lawyers who got rule 3216 amended in 1964, but vetoed by the Governor. In 1965 these proponents, apparently realizing that the first paragraph of rule 3216 was still in effect, succeeded in getting a further amendment of the second paragraph of rule 3216 to provide that the formula of the second paragraph applied not only to motions based on failure of the plaintiff to serve and file a note of issue but also to any failure of the plaintiff 'to diligently prosecute the action'. Governor Rockefeller vetoed the 1965 bill on the recommendations of the Presiding Justices of the Appellate Divisions in the Second, Third and Fourth Departments (the First Department had already similarly expressed itself in Mulinos v. Coliseum Constr. Corp., 22 A.D.2d 163, 254 N.Y.S.2d 282 and Brown v. Weissberg, 22 A.D.2d 282, 254 N.Y.S.2d 628), also on the recommendations of the State Bar Association, the City Bar Association and the Judicial Conference's Committee on CPLR. The Governor in his veto message accepted the view of these courts and Bar Associations 'that this bill would impose an unnecessary limitation on the discretion of the courts in dealing with neglected actions, and that the present law affords ample protection to plaintiffs who have a meritorious cause of action'. The history of this 1965 attempted amendment seems to us to confirm that rule 3216, as it stands, left intact the ancient power of the courts to dismiss for general delay.

Now back to the present case which is not a negligence case but is based on alleged liability on guarantees in commercial transactions. The suit was commenced in November, 1958 and the answer was served during the following month. In April, 1961 a note of issue and statement of readiness was served by plaintiff on all defendants but immediately afterwards this was withdrawn so that defendant Mintz might complete pretrial procedures. Four years then elapsed with no activity in the case. In June, 1965 plaintiff served and filed another note of issue and defendant Mintz then moved to dismiss. He did not comply with the Second paragraph of rule 3216. As it seems...