The Second Department has been quite consistent as to when an action can be dismissed for neglect to prosecute — at least until now. Prior to Marrero v. Nails, the Second Department routinely held that an action cannot be dismissed for neglect to prosecute unless the defendant met the statutory preconditions set forth in CPLR 3216. A 90-day demand requesting that plaintiff file the note of issue is one of the preconditions. If that condition was not satisfied, the case could not be dismissed for neglect to prosecute, regardless of the length or pattern of delay.
However, in Marrero, the Second Department supplied the defense bar with another route to seek dismissal for neglect to prosecute, provided there is a consistent pattern of delay. There, the court dismissed the plaintiff’s case pursuant to 22 NYCRR 202.27(b) after the plaintiff’s counsel failed to appear for a discovery conference. 22 NYCRR 202.27(b) provides:
“At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows . . . If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims.”
The plaintiff argued that prior Second Department case law held that a dismissal pursuant to 22 NYCRR 202.27 was not a dismissal for neglect to prosecute since the defendant had not served the required 90-day demand. The Court, however, rejected this argument, and held that in certain circumstances, such as when there is a consistent pattern of delay, a dismissal pursuant to 22 NYCRR 202.27 can be for neglect to prosecute.
Going forward, defense counsel has a new weapon in the arsenal. Quite often, the plaintiff’s counsel fails to appear for a discovery conference, leaving defense counsel with two options: request an adjournment and inform plaintiff’s counsel of the new conference date or take the default and wait until the plaintiff makes the pro forma motion to vacate that the defendant could not defeat since it had not served the 90-day demand. In either situation, the result is a waste of time and money. Now, however, if the plaintiff’s counsel fails to appear for a discovery conference, defense counsel should consider taking the default if the plaintiff’s counsel has shown a pattern of delay and then opposing the motion to vacate based on the plaintiff’s neglect to prosecute. Defense counsel should also insist on completing a default order stating that the dismissal is pursuant to 22 NYCRR 202.27(b) and outlining the plaintiff’s pattern of neglect.
Special thanks to Gabe Darwick for his contribution.