New York State Court of Claims

New York State Court of Claims

HOLZER v. THE STATE OF NEW YORK, #2001-015-117, Claim No. 100085, Motion No. M-62739


Defendant's unopposed motion to dismiss claim based upon claimant's failure to resume prosecution of action pursuant to 90 day demand under CPLR 3216 granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Becker & D'AgostinoNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 23, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for an order pursuant to CPLR 3216 dismissing the claim for neglect to prosecute, upon which the claimant has failed to submit opposition, is granted. The Court, by order dated June 29, 1999 following a preliminary telephone conference, directed that discovery be completed and that claimant file a note of issue on or before June 23, 2000. By letter dated June 22, 2000 claimant's attorneys requested an extension of time to file the note of issue in order to complete discovery.

The Court responded to the request by issuing a 90 day demand that claimant notice the action for trial. The demand dated July 10, 2000 was served by certified mail, return receipt requested on July 11, 2000 and its reception by claimant's attorneys is evidenced by the return receipt signed by "R. Ali."[1] It directed the claimant to "resume prosecution of the action and serve and file a note of issue placing this action upon the calendar for trial within ninety days after receipt of this demand."

By affidavit dated November 16, 2000, offered in support of the instant motion, Assistant Attorney General Dennis M. Acton asserts that no note of issue has been served or filed.

The history and operation of CPLR 3216 is described by the Court of Appeals in the case of Baczkowski v Collins Constr. Co., 89 NY2d 499, 502, 503, as follows:
CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals. The provision has a checkered history, which this Court has recounted on prior occasions (see, e.g. Chase v Scavuzzo, 87 NY2d 228, 231-233; Cohn v Borchard Affiliations, 25 NY2d 237, 244-246; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:1-C3216:4, at 628-635). As a result of a 1967 amendment to CPLR 3216, courts are prohibited from dismissing an action for neglect to prosecute unless the statutory preconditions to dismissal are met (see, CPLR 3216[b]; Cohn v Borchard Affiliations, supra, 25 NY2d at 246).

CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period (CPLR 3216[b]). So long as plaintiff serves and files a note of issue within the 90-day period, all past delay is absolved and the court is then without authority to dismiss the action (CPLR 3216[c]). However, if plaintiff fails to file a note of issue within the 90-day period, 'the court may take such initiative or grant such motion [to dismiss] unless the [defaulting] party shows justifiable excuse for the delay and a good and meritorious cause of action' (CPLR 3216 [e]). Thus, even when all of the statutory preconditions are met, including plaintiff's failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse and an affidavit of merit. If plaintiff makes a sufficient showing, the court is prohibited from dismissing the action.
Upon the receipt of a demand to resume prosecution of the action or claim within 90 days by the filing of a trial term note of issue, the claimant was required to either file the note of issue or move to extend the time period in which to do so (Phil Collins Constr. v Hollis, 247 AD2d 736). Claimant's attorneys did neither. In this case, the Attorney General submitted proof of service of a copy of the motion papers upon the claimant's attorneys at 880 Third Avenue, New York, NY 10022, their official address in New York City on November 15, 2000. To avoid dismissal claimant was required to oppose the motion by demonstrating both the existence of a potentially meritorious claim and a justifiable excuse for the delay in responding to the 90 day demand (Diaz v Caypinar, 209 AD2d 375, 376; Meyer v Booth Mem. Med. Ctr., 270 AD2d 319). Claimant's attorneys submitted no papers in opposition to the motion, a failure which compels that the motion be granted (Wertheimer v J.B. Oil Serv. Corp., 36 AD2d 584) and the claim dismissed.

January 23, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 15, 2000;
  2. Affidavit in support of defendant's motion to dismiss sworn to November 15, 2000 with exhibits;

[1]A copy of which is included in the Court's claim file.