In L.T. v. E.R., the Appellate Division, Second Department, reviewed a procedural dispute in a medical malpractice case. L.T. had filed suit against E.R., alleging negligent medical treatment.
After a period of inactivity in the litigation, E.R. moved to dismiss the complaint under CPLR 3216, which allows a case to be dismissed for failure to prosecute—provided certain procedural requirements are met.
Under CPLR 3216, dismissal is only permitted if the plaintiff receives a written 90-day notice demanding that they resume prosecution and file a note of issue. Crucially, the notice must also state that failure to comply will result in a motion to dismiss. This requirement is not optional; it’s a statutory condition that must be satisfied before dismissal can be granted.
In this case, the notices served by E.R. and the order issued by the court failed to include that critical warning. Because the notices did not state that noncompliance would lead to dismissal, they were defective. As a result, the court lacked authority to dismiss the complaint under CPLR 3216.
The appellate court reversed the lower court’s decision and denied E.R.’s motion. The ruling reinforces the importance of strict adherence to procedural rules, especially when a party’s claim is at risk of being dismissed. Even in cases of delay, the law requires that plaintiffs be properly notified before their case can be terminated.
The notice needed a notice ....
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DECISION