OPINION OF THE COURT
This appeal from the dismissal of a complaint pursuant to both CPLR 3404 and CPLR 3216 presents us with the occasion to consider the overlap between the two rules and to hold, in accord with the Appellate Division, Second Department (see, Lopez v Imperial Delivery Serv.,
Plaintiffs commenced this action on November 3, 1993, after plaintiff Elaine Johnson allegedly was injured in a fall down a flight of stairs on premises owned by defendant Minskoff. At a preliminary conference in June 1995, plaintiffs were directed to file a note of issue by July 13, 1996 (Richard Lowe, III, J.). They were unable to do so because defendants failed to comply with their discovery requests, and on October 21, 1996, plaintiffs moved to strike Minskoffs answer for failure to produce a witness for deposition. After adjourning the motion at Minskoffs request, plaintiffs agreed to withdraw it on February 19, 1997, in a stipulation “so ordered” by Justice Lowe, in which Minskoff agreed to a new discovery schedule and plaintiffs reserved the right to depose additional Minskoff witnesses if necessary after review of the Minskoff discovery. There was no reference in this stipulation to a deadline for the filing of the note of issue.
On January 14, 1998, Minskoff moved to dismiss the action pursuant to CPLR 3216, on the ground that plaintiffs had failed
On October 7, 1999, Minskoff again moved pursuant to CPLR 3216 to dismiss the action for failure to prosecute. ISS cross-moved for the same relief, adding that, as more than one year had elapsed since the action had been marked off the calendar, it should be dismissed pursuant to CPLR 3404. The court dismissed the complaint pursuant to both rules.
CPLR 3404 provides:
“A case in the supreme court or a county court marked ‘off’ or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.”
We hold, in accord with Lopez (supra,
In brief, according to Lopez, the history of CPLR 3404, which was derived from a rule that specifically referred to the “trial term” or “special term” calendar, and its chronological placement in the statutory scheme — i.e., immediately following the procedures for filing a note of issue (CPLR 3402) and for seeking a trial preference (CPLR 3403) — demonstrate that CPLR 3404 governs cases marked off a trial calendar only. The
In practice, as the Court points out in Lopez, a case marked off pursuant to CPLR 3404 and dismissed after one year may be restored to the trial calendar even after several years of inactivity. If the case was already on the calendar when it was marked off, then upon restoration it will proceed to trial immediately without further delay. But if the case had been marked off before it had even reached the trial calendar, then the trial would be further delayed by the completion of outstanding discovery with attendant motion practice. Thus, far from bringing discovery to an end as quickly as possible, marking a case off or striking a case during discovery encourages inaction by the parties and ultimately leads to unnecessary motion practice, loss of valuable time for discovery, and a waste of judicial resources.
As the Court observes in Lopez, the more effective means of goading inactive parties to complete discovery are CPLR 3216 and 22 NYCRR 202.27; there is also CPLR 3126 (penalties for refusal to comply with order to disclose). Restoration of a case dismissed pursuant to either CPLR 3216 or 22 NYCRR 202.27 may be sought by motion pursuant to CPLR 5015 (a) (1) (relief from judgment or order). Since CPLR 5015 (a) (1) by its terms provides that such a motion be made within one year after service of the order or judgment entered upon the default, the delay in a case dismissed pursuant to CPLR 3216 or 22 NYCRR 202.27 will ordinarily be at most one year. Of course, a court has the discretionary power to vacate a default even after the year has expired (see, e.g., State of New York v Kama,
We note that, even if CPLR 3404 were applicable to pre-note cases, the dismissal of the complaint pursuant to that rule was improvident here, given the procedural infirmities in the marking off of the case. The court dismissed the complaint on the ground that the case had been marked off on January 20, 1998, when plaintiffs failed to file a note of issue originally due on July 13, 1996, and because, having failed to respond to defendants’ July 10, 1997, 90-day demand, they still were not ready to proceed. However, it is uncontroverted that on January 20, 1998, the case simply was not on any calendar from which it could be marked off. Moreover, the July 1996 court-ordered date for the plaintiffs’ filing of a note of issue had been superseded by the parties’ February 1997 stipulation to a revised discovery schedule that imposed no filing deadline. Indeed, in its April 1998 order, the court in effect directed that all outstanding discovery be completed. Finally, to the extent that the marking off was based on the 90-day notice, it was improper because the notice was defective, as discussed below.
CPLR 3216 prohibits the dismissal of an action on the ground of general delay or for failure to serve and file a note of issue where the plaintiff has not been served with a 90-day demand to serve and file a note of issue (subd [b] [3]; see, Chase v Scavuzzo,
We note that textual errors rendered MinskofFs demand defective in any event. The notice reads, “[T]he undersigned hereby demands that the defendant herein resumes processing this action” and refers to the “default of the defendant in complying with this demand” (emphasis added), and it indicates that it was being mailed both to plaintiffs and to defendant ISS. Therefore, the demand would not have put plaintiffs on notice, as required by CPLR 3216 (b) (3), that they were “to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand,” even if they had received it.
Accordingly, the order of the Supreme Court, New York County (Lorraine Miller, J.), entered on or about December 17, 1999, which denied plaintiffs’ motion to extend the time to file a note of issue and granted defendants’ motion and cross motion to dismiss the complaint, should be reversed, on the law, without costs, plaintiffs’ motion granted, defendants’ motions denied and the complaint reinstated. Appeal from order, same court and Justice, entered June 15, 2000, which denied plaintiffs’ motion to reargue its previous order, should be dismissed, without costs, as taken from a non-appealable paper.
Mazzarelli, J. P., Andrias, Buckley and Marlow, JJ., concur.
Order, Supreme Court, New York County, entered on or about December 17, 1999, reversed, on the law, without costs, plaintiffs’ motion to extend the time to file a note of issue granted, defendants’ motion and cross motion to dismiss the complaint denied and the complaint reinstated. Appeal from order, same court, entered June 15, 2000, dismissed, without costs, as taken from a non-appealable paper.