The New York 90-day demand: what CPLR 3216 requires before a case can be dismissed for delay

CPLR 3216 is one of the most condition-laden rules in the CPLR. It authorizes dismissal for neglecting to prosecute, and then makes that dismissal nearly impossible unless a specific sequence has been followed first.

The authority, and its limits

CPLR 3216(a):

Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

That last sentence matters: a 3216 dismissal is presumptively without prejudice, so the underlying claim may survive if the statute of limitations hasn't run.

Three conditions precedent

CPLR 3216(b) is where the rule does its real work: "No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with."

1. Issue must have been joined. No answer, no dismissal under this rule. A case where the defendant has never appeared is not a 3216 case.

2. The waiting period. "One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later."

Whichever is later — so a preliminary conference order issued late in the case pushes the earliest possible date out, rather than pulling it in.

3. A written 90-day demand. The court or the party seeking relief

shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed.

Four requirements packed into one sentence: registered or certified mail; a demand to resume prosecution and to file a note of issue; ninety days measured from receipt, not mailing; and an express statement that non-compliance will be the basis for a dismissal motion.

Where the court serves the demand rather than a party, CPLR 3216(b)(3) adds a further requirement: "the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

Filing the note of issue ends it

CPLR 3216(c):

In the event that the party upon whom is served the demand … serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action; and in such event, no such court initiative shall be taken and no such motion shall be made, and if taken or made, the court initiative or motion to dismiss shall be denied.

Filing the note of issue inside the ninety days is a complete answer. Not a factor the court weighs — a mandatory denial.

CPLR 3216(d) extends the protection backward: once an action has been placed on the calendar by service and filing of a note of issue — with or without a demand, and if a demand was served, within the ninety days — "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."

Filing the note of issue wipes out the earlier delay as a ground for dismissal.

If the ninety days pass

CPLR 3216(e): where the party served with the demand fails to serve and file a note of issue within the ninety days, "the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action."

Two elements, both required — an excuse for the delay, and a meritorious cause of action. And note the verb: the court "may" grant the motion. Even after a default on the demand, dismissal is discretionary.

Law office failure is expressly available as an excuse

CPLR 2005 is worth reading alongside 3216(e):

Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.

CPLR 2004 is the general extension provision, and it is unusually generous: the court may extend the time fixed by any statute, rule or order "upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."

Unlike the federal rules, New York applies the same good-cause standard whether the request comes before or after the deadline.

A different provision for cases marked off the calendar

CPLR 3216 governs the pre-note-of-issue phase. Once a case has been on the calendar and is then struck or marked off, CPLR 3404 applies instead:

A case marked off or struck from the calendar and not restored within one year is deemed abandoned and is dismissed without costs for neglect to prosecute.

The two rules cover different stages, and the deadlines are unrelated. Checking which posture a case is in comes before anything else.

The sequence, as the rule sets it

Where these rules live

• CPLR 2004 — Extensions of Time
• CPLR 2005 — Excuse for Law Office Failure
• CPLR 3012 — Service of Pleadings and Demand for Complaint
• CPLR 3216 — Want of Prosecution
• CPLR 3402 — Note of Issue
• CPLR 3404 — Dismissal of Abandoned Cases
• CPLR 5015 — Relief from Judgment or Order

The New York courts publish self-help material at nycourts.gov. This page explains what the CPLR says. It isn't legal advice.