Bill Text: NY S05073 | 2013-2014 | General Assembly | Introduced

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Bill Title: Relates to want of prosecution.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2014-05-12 - SUBSTITUTED BY A9075 [S05073 Detail]

Download: New_York-2013-S05073-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5073
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      May 8, 2013
                                      ___________
       Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
         istration) -- read twice and ordered printed, and when printed  to  be
         committed to the Committee on Judiciary
       AN ACT to amend the civil practice law and rules, in relation to want of
         prosecution
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivisions (a) and (b) of rule 3216 of the civil practice
    2  law and rules, as added by chapter 770 of the laws of 1967, paragraph  3
    3  of  subdivision  (b)  as  amended  by chapter 4 of the laws of 1978, are
    4  amended to read as follows:
    5    (a) Where a party unreasonably neglects to  proceed  generally  in  an
    6  action  or otherwise delays in the prosecution thereof against any party
    7  who may be liable to a separate judgment, or unreasonably fails to serve
    8  and file a note of issue, the court,  on  its  own  initiative  or  upon
    9  motion,  WITH NOTICE TO THE PARTIES, may dismiss the party's pleading on
   10  terms. Unless the order specifies otherwise, the dismissal is not on the
   11  merits.
   12    (b) No dismissal shall be directed under any  portion  of  subdivision
   13  (a)  of  this rule and no court initiative shall be taken or motion made
   14  thereunder unless the following conditions precedent have been  complied
   15  with:
   16    (1) Issue must have been joined in the action;
   17    (2)  One  year  must  have  elapsed  since the joinder of issue OR SIX
   18  MONTHS MUST HAVE ELAPSED SINCE THE ISSUANCE  OF  THE  PRELIMINARY  COURT
   19  CONFERENCE  ORDER  WHERE  SUCH  AN  ORDER  HAS BEEN ISSUED, WHICHEVER IS
   20  LATER;
   21    (3) The court or party seeking such relief, as the case may be,  shall
   22  have  served  a written demand by registered or certified mail requiring
   23  the party against whom such relief is sought to  resume  prosecution  of
   24  the  action  and  to  serve  and file a note of issue within ninety days
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09755-01-3
       S. 5073                             2
    1  after receipt of such demand, and further stating that  the  default  by
    2  the  party upon whom such notice is served in complying with such demand
    3  within said ninety day period will serve as a basis for a motion by  the
    4  party serving said demand for dismissal as against him OR HER for unrea-
    5  sonably  neglecting  to proceed.   WHERE THE WRITTEN DEMAND IS SERVED BY
    6  THE COURT, THE DEMAND SHALL SET FORTH THE SPECIFIC CONDUCT  CONSTITUTING
    7  THE  NEGLECT, WHICH CONDUCT SHALL DEMONSTRATE A GENERAL PATTERN OF DELAY
    8  IN PROCEEDING WITH THE LITIGATION.
    9    S 2. This act shall take effect on the first of January next  succeed-
   10  ing the date on which it shall have become law.