N.Y. Civil Practice Law & Rules § 3216: Want of prosecution

Rule 3216. Want of prosecution. (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.

(b) 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 in the action;

(2) 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;

(3) The court or party seeking such relief, as the case may be, 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. Where the written demand is served

by the court, 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.

(c) In the event that the party upon whom is served the demand

specified in subdivision (b) (3) of this rule 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. (d) After an action has been placed

on the calendar by the service and filing of a note of issue, with or

without any such demand, provided, however, if such demand has been

served, within the said ninety day period, 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.

(e) In the event that the party upon whom is served the demand

specified in subdivision (b) (3) of this rule fails to serve and file a

note of issue within such ninety day period, 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.

(f) The provisions of this rule shall not apply to proceedings within

rule thirty-four hundred four.