Page 6 - The Suffolk Lawyer - March 2021 - Vol. 36, No. 2
P. 6


                   Inactive Case May Be Restored After Six Years

                                                                            By Paul Devlin

                n the case of Guillebeaux v Parrott, (188 AD3d 1017, (2nd Dep’t readiness to proceed immediately or subject to the engagement of
                2020), the Supreme Court, Queens County, had granted defen- counsel . . .” However, this rule requires the judge to make an order
            I dant’s motion to vacate the note of issue on December 6, 2012. regarding default or dismissal. In the Guillebeaux matter, the
            The plaintiff then moved to restore the case to active status. The Supreme Court did not issue an order pursuant to this rule.
            Supreme Court denied plaintiff’s motion on the doctrine of laches.          Finally, the Second Department found that “[t]he doctrine of
            The Second Department recently reversed the Supreme Court and laches does not provide [a] basis to dismiss a complaint where there
            granted the plaintiff’s motion in a decision dated November 18, has been no service of a 90-day demand pursuant to CPLR 3216
            2021, allowing the case to be restored over six years after the trial (b), and where the case management devices of CPLR 3404 and 22
            court vacated the note of issue. The Second Department reasoned NYCRR 202.27 are inapplicable” (Arroyo v Board of Educ. of City of
            as follows: Pursuant to CPLR 3404, “A case in the supreme court or N.Y., 110 AD3d 17, 20 [2013]; see Onewest Bank, FSB v Kaur, 172
            a county court marked ‘off’ or struck from the calendar or unan- AD3d 1392, 1393 [2019]). “The procedural device of dismissing a
            swered on a clerk's calendar call, and not restored within one year complaint for undue delay is a legislative creation, and courts do not
            thereafter, shall be deemed abandoned and shall be dismissed with- possess the inherent power to dismiss an action for general delay
            out costs for neglect to prosecute. The clerk shall make an appro- where the plaintiff has not been served with a 90-day demand to
            priate entry without the necessity of an order.” However, this rule      serve and file a note of issue pursuant to CPLR 3216 (b)” (Campbell
            does not apply to pre-note of issue cases (see Guillebeaux citing v New York City Tr. Auth., 109 AD3d 455, 455 [2013]; see Chase v
            WM Specialty Mtge., LLC v Palazzollo, 145 AD3d 714, 715 [2016]).         Scavuzzo, 87 NY2d 228, 233 [1995]; Airmont Homes v Town of
               Rule 3216 of the CPLR does provide for dismissal of an action for Ramapo, 69 NY2d 901, 902 [1987]; Arroyo v Board of Educ. of City
            want of prosecution prior to filing of the note of issue, but requires of N.Y., 110 AD3d at 20).                     (Continued on page 26)
            the court or party seeking dismissal to serve a 90-day notice on the
            party against whom the relief is sought. Here in the Guillebeaux
            case, the defendants did not serve such a notice on the plaintiff. As                              Paul Devlin
            such, dismissal pursuant to this rule was not applicable.                                          SCBA Board of Directors
               Another possibility for default would have been a court order pur-                             Paul Devlin serves on the SCBA Board of
            suant to 22 NYCRR 202.27. This rule provides that the court may                                   Directions, he is co-chair of the SCBA Supreme
                                                                                                              Court Committee, and volunteers his time to the
            dismiss an action, “At any scheduled call of a calendar or at any con-                          Suffolk Academy of Law. He may be reached at 631-
            ference, if all parties do not appear and proceed or announce their                           760-0923.

            6 THE SUFFOLK LAWYER • The Official Publication of the Suffolk County Bar Association •                   MARCH 2021 EDITION
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