Murray v. T.W. Smith Corp.

18 Citing cases

  1. Bank of N.Y. v. Harper

    176 A.D.3d 907 (N.Y. App. Div. 2019)   Cited 17 times

    22 NYCRR 202.27 gives a court the discretion to dismiss an action where the plaintiff fails to appear "[a]t any scheduled call of a calendar or at any conference" (seeBank of N.Y. v. Castillo, 120 A.D.3d 598, 599, 991 N.Y.S.2d 446 ). Here, "[t]he record is devoid of any evidence that there was a conference scheduled" at which the plaintiff failed to appear at any time between the conference on July 16, 2012, at which the plaintiff appeared, and the order dated November 21, 2012, directing dismissal of the action, "and the Supreme Court did not dismiss the complaint on that date based upon a default in appearing at a scheduled conference, as is contemplated by the court rule authorizing such a dismissal" ( Murray v. Smith Corp., 296 A.D.2d 445, 446, 744 N.Y.S.2d 901 ; seeBanik v. Evy Realty, LLC, 84 A.D.3d 994, 995, 925 N.Y.S.2d 333 ). Thus, contrary to the defendant's contention, 22 NYCRR 202.27 could not have provided the basis for the order directing dismissal of the complaint, or for the order that denied the plaintiff's motion to vacate the dismissal and restore the action to the calendar (seeBanik v. Evy Realty, LLC, 84 A.D.3d at 995, 925 N.Y.S.2d 333 ; Murray v. Smith Corp., 296 A.D.2d at 446, 744 N.Y.S.2d 901 ).

  2. Banik v. Evy Realty

    84 A.D.3d 994 (N.Y. App. Div. 2011)   Cited 14 times

    The record is devoid of any evidence that there was a conference scheduled for September 25, 2009, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Thus, contrary to Evy's contentions, 22 NYCRR 202.27 could not have provided the basis for the order dated April 14, 2010, denying those branches of the plaintiffs' motion which were to vacate the dismissal and restore the action to active status with respect to it ( see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Clark v Great Atl. Pac. Tea Co., Inc., 23 AD3d 510, 511; Murray v Smith Corp., 296 AD2d 445, 446). Furthermore, while the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met ( see Baczkowski v Collins Constr. Co., 89 NY2d 499, 502-503; Murray v Smith Corp., 296 AD2d at 447; Schwartz v Nathanson, 261 AD2d 527, 528; Schuering v Stella, 243 AD2d 623, 624).

  3. Delgado v. New York City Housing Authority

    21 A.D.3d 522 (N.Y. App. Div. 2005)   Cited 38 times

    A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met ( see Baczkowski v. Collins Constr. Co., 89 NY2d 499, 502-503; Akpinar v. John Hancock Mut. Life Ins. Co., 302 AD2d 337; Murray v. Smith Corp., 296 AD2d 445, 447; Schwartz v. Nathanson, 261 AD2d 527). The compliance conference order dated January 7, 2003, could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave the plaintiff only 87 days within which to file the note of issue ( see Vasquez v. Big Apple Constr. Corp., 306 AD2d 465; Beepat v. James, 303 AD2d 345; Halali v. Evanston Ins. Co., 288 AD2d 260, 261).

  4. Bank of N.Y. v. Arden

    140 A.D.3d 1099 (N.Y. App. Div. 2016)   Cited 14 times

    ng the plaintiff's unopposed motion to restore, since CPLR 3404 is inapplicable to pre-note of issue actions such as this one (see Cerrone v. North Shore–Long Is. Jewish Health Sys., Inc., 134 A.D.3d 874, 875, 20 N.Y.S.3d 539 ; Kapnisakis v. Woo, 114 A.D.3d 729, 730, 980 N.Y.S.2d 144 ; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198, 725 N.Y.S.2d 57 ). Therefore, since this action could not properly be marked off pursuant to CPLR 3404, the plaintiff was not obligated to move to restore within any specified time frame (see Yunga v. Yonkers Contr. Co., Inc., 134 A.D.3d 1031, 1033, 21 N.Y.S.3d 716 ; Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 21, 970 N.Y.S.2d 229 ; Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 657–658, 949 N.Y.S.2d 769 ; Farley v. Danaher Corp., 295 A.D.2d 559, 560, 744 N.Y.S.2d 709 ), and the plaintiff was not obligated to demonstrate a reasonable excuse for its failure to appear on the scheduled conference date and a potentially meritorious claim (see Murray v. Smith Corp., 296 A.D.2d 445, 446, 744 N.Y.S.2d 901 ; Farley v. Danaher Corp., 295 A.D.2d at 560, 744 N.Y.S.2d 709 ). Accordingly, the court should have granted the plaintiff's motion to restore the action to active status and to refer the action to the settlement conference part.

  5. Griffith v. Wray

    109 A.D.3d 512 (N.Y. App. Div. 2013)   Cited 11 times

    ORDERED that the order dated January 5, 2012, is affirmed, with costs. “[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” ( Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333;see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 522, 801 N.Y.S.2d 43;Murray v. Smith Corp., 296 A.D.2d 445, 446–447, 744 N.Y.S.2d 901). “A 90–day demand to file a note of issue is one of the statutory preconditions”

  6. Neary v. Tower Ins.

    94 A.D.3d 723 (N.Y. App. Div. 2012)   Cited 13 times

    “[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” ( Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333, citing Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460; see Murray v. Smith Corp., 296 A.D.2d 445, 446–447, 744 N.Y.S.2d 901; Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 522, 801 N.Y.S.2d 43). A 90–day demand to file a note of issue is one of the statutory preconditions ( see CPLR 3216[b] [3]; Maharaj v. LaRoche, 69 A.D.3d 684, 684, 891 N.Y.S.2d 653).

  7. Tolmasova v. Umarova

    90 A.D.3d 1028 (N.Y. App. Div. 2011)   Cited 5 times

    ORDERED that one bill of costs is awarded to the respondent. While the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint pursuant to CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the statutory preconditions to dismissal set forth in CPLR 3216 are met ( see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460; Murray v. Smith Corp., 296 A.D.2d 445, 447, 744 N.Y.S.2d 901; Schwartz v. Nathanson, 261 A.D.2d 527, 528, 690 N.Y.S.2d 635; Schuering v. Stella, 243 A.D.2d 623, 624, 663 N.Y.S.2d 232). Here, a compliance conference order dated October 29, 2009, which set a date for the filing of the note of issue, did not constitute a valid 90–day demand because there was no warning that failure to file the note of issue by March 31, 2010, would serve as a basis for dismissal pursuant to CPLR 3216 ( see Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333; Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919; Ratway v. Donnenfeld, 43 A.D.3d 465, 841 N.Y.S.2d 597).

  8. Maharaj v. Laroche

    69 A.D.3d 684 (N.Y. App. Div. 2010)   Cited 5 times

    Notably, the compliance order specifically advised that it did not constitute a CPLR 3216 notice. Thus, the order could not be deemed a 90-day demand to file a note of issue, which is a precondition to dismissal under CPLR 3216 ( see CPLR 3216 [b] [3]; Ratway v Donnenfeld, 43 AD3d 465; Heifetz v Godoy, 38 AD3d 605; Murray v Smith Corp., 296 AD2d 445, 447). Accordingly, the plaintiffs motion to restore the action to the calendar should have been granted.

  9. Harrison v. Good Samaritan Hosp

    43 A.D.3d 996 (N.Y. App. Div. 2007)   Cited 11 times

    The defendant's demand dated November 11, 2004 for the resumption of the prosecution of the action cannot be deemed a notice pursuant to CPLR 3216 because it did not conform to the provisions of that statute. Since a proper notice was not served upon the plaintiff prior to the defendant's motion, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216 ( see Kesar v Green Ridge Enters. Corp., 30 AD3d 471; Murray v Smith Corp., 296 AD2d 445, 447; Ameropan Realty Corp. v Rangeley Lakes Corp., supra at 632). Accordingly, the Supreme Court properly granted the plaintiff's motion to vacate the judgment dismissing the action.

  10. Patel v. MBG Development, Inc.

    41 A.D.3d 682 (N.Y. App. Div. 2007)   Cited 11 times

    A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met ( see Baczkowski v CollinsConstr. Co., 89 NY2d 499, 503; Akpinar v John Hancock Mut. Life Ins. Co., 302 AD2d 337; Murray v Smith Corp., 296 AD2d 445, 447; Schwartz v Nathanson, 261 AD2d 527, 528). The trial readiness order entered in this action and dated December 17, 2002, could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave the plaintiffs only 60 days within which to serve and file the note of issue, and did not advise the plaintiffs that their failure to comply with the demand would serve as the basis for a motion to dismiss the action ( see Vasquez v Big Apple Constr. Corp., 306 AD2d 465; Beepat v James, 303 AD2d 345, 346; cf. Murray v Smith Corp., supra).