2023 New York Laws › CVP - Civil Practice Law and Rules › Article 32 - Accelerated Judgment › R3216 - 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.