
    Margot Thomas, Appellant, v. Melbert Foods, Inc., Respondent.
    Argued January 11, 1967;
    decided March 2, 1967.
    
      
      George D. Garofallou for appellant.
    I. Defendant’s motion to dismiss for unreasonable neglect was properly denied by the lower court inasmuch as no note of issue had been filed by plaintiff, nor had any 45-day notice been served upon plaintiff as required by CPLB 3216. (Fischer v. Pan Amer. World Airways, 16 N Y 2d 725; Roberts v. New York Post Corp., 24 A D 2d 714; Salama, v. Cohen, 16 N Y 2d 1058; Tomich v. Cohen, 16 N Y 2d 1058; Commercial Credit Corp. v. Lafayette, 17 N Y 2d 367; Mulinos v. Coliseum Constr. Corp., 22 A D 2d 163.) II. Plaintiff may appeal as of right.
    
      Lewis I. Wolf and Emanuel Morgenbesser for respondent.
    I. The Supreme Court either at Special Term or in the Appellate Division has the power either by statute or inherently to dismiss an action for general neglect without service of a 45-day notice. (Commercial Credit Corp. v. Lafayette, 17 N Y 2d 367; Mulinos v. Coliseum Constr. Corp., 22 A D 2d 163; Brown v. Weissberg, 22 A D 2d 282; Waldo v. Schmidt, 200 N. Y. 199; People ex rel. Swift v. Luce, 204 N. Y. 478; Matter of Stilwell, 139 N. Y. 337; People ex rel. Mayor of N. Y. v. Nichols, 79 N. Y. 582; Alexander v. Bennett, 60 N. Y. 204; Johnson v. Lasser, 159 Misc. 346; Marvis v. Marvis, 216 App. Div. 291; Ocorr v. Lynn, 105 Misc. 489; Bell v. Niewahner, 54 App. Div. 530; Matter of Pye, 21 App. Div. 266; Getman v. Mayor of N. Y., 66 Hun 236; Matter of 3505 Realty Corp. v. Weinberger, 41 Misc 2d 254; Sortino v. Fisher, 20 AD 2d 25; Gino v. Syracuse Mem. Hosp., 23 A D 2d 964; Roberts v. New York Post Corp., 24 A D 2d 714.) II. Any statute which presumes to impinge upon the court’s power to control its calendars and the disposition of its business is unconstitutional. (Riglander v. Star 
      
      Co., 98 App. Div. 101, 181 N. Y. 531; Plachle v. Bancroft Inc., 3 A D 2d 437.) III. The motion to dismiss was in the present case based upon plaintiff’s general neglect and was not based upon a failure to file a note of issue, (Commercial Credit Corp. v. Lafayette, 17 N Y 2d 367; Salama v. Cohen, 16 N Y 2d 1058; Tomich v. Cohen, 16 N Y 2d 1058; Matter of Morhous v. Supreme Court of New York, 293 N. Y. 131; People v. McCullough, 300 N. Y. 107.) IV. The order and judgment appealed from are not a final order and judgment within the meaning of the Constitution of the State of New York and constitute an exercise of discretion not reviewable in the Court of Appeals. (Mintzer v. Loeb, Rhoades & Co., 10 A D 2d 27; Bliss v. Omnibus Corp., 169 Misc. 662; Berman v. Esposito, 35 Misc 2d 59; Kenyon v. Robin, 231 N. Y. 604; Platt v. Tenenbaum, 16 N Y 2d 614; Miranda v. City of New York, 10 N Y 2d 883; Keller v. United States Lines, 15 N Y 2d 908; Crandall v. Crandall, 281 N. Y. 632; Pacent v. Warner Bros. Pictures, 291 N. Y. 658; Newman v. Revillon, 296 N. Y. 1052.) V. The motion to dismiss the action fqr plaintiff’s general neglect in the prosecution thereof was properly granted inasmuch as no affidavit of merits was submitted in opposition thereto. (Weeks v. Jankowitz, 23 A D 2d 549; Hardware Mut. Cas. Co. v. Rosenberg, 3 A D 2d 988; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942; O’Rourke v. City of New York, 3 A D 2d 713; Brassner Mfg. Co. v. Consolidated Edison Co. of N. Y., 1 A D 2d 840; Moebus v. Tishman Co., 5 A D 2d 786, 5 N Y 2d 945; Geller v. Rochambeau Apts., 11 A D 2d 926; Robbins v. 352 Realty Corp., 13 A D 2d 489.) VI. Plaintiff’s neglect in prosecuting this action has not been satisfactorily explained or excused. (Maloney v. Springfield Development Co., 20 A D 2d 526; Threewitts v. Almanzar, 11 A D 2d 981; Hencken v. Edelman, 15 A D 2d 734; Krell v. Pelham Syndicate, 14 A D 2d 845; Trapani v. Samuels, 3 A D 2d 861, 3 N Y 2d 931; Fast v. Meenan Oil Co., 1 A D 2d 889; Maizonet v. Lee Props., 11 A D 2d 667; Mann v. Nednil Terrace Corp., 35 Misc 2d 182.) VII. Plaintiff’s failure to comply with the rules of the Supreme Court and the prejudice to the court and defendant warrant that the dismissal of the action for defendant’s general neglect be permitted to stand, (Rothschild v. Haviland, 172 App. Div. 562; Lopez v. Vesce, 4 A D 2d 1032.)
   , Keating, J.

The plaintiff has alleged that she was injured in October of 1960. She brought this action against the defendant in June, 1962. In the same month issue was joined. In March, 1963, the defendant served on the plaintiff a notice for a physical examination. The plaintiff failed to submit to the examination, and took no further steps in the action. Finally, in February, 1965, the defendant moved to dismiss on the grounds of general delay.

At the time the defendant made his motion to dismiss no note of issue had been filed.

Special Term denied the motion. On appeal, the Appellate Division reversed the order of Special Term and granted the defendant’s motion to dismiss.

The question of law involved on this appeal is whether the courts have the power to dismiss an action for general delay prior to the filing of a note of issue, if the defendant has failed to comply with the 45-day demand requirement of CPLR 3216.

The rule states in full:

“Where a party unreasonably neglects to proceed in the action against any party who may be liable to a separate judgment, the court, on its own initiative or upon motion, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.
“No such motion based upon the failure of the plaintiff to serve and file a note of issue witlvm the time limited therefor by law or rule, shall be made or granted until at least six months has expired since the joinder of issue. Nor shall such a motion be made or granted unless the defendant shall have served a written demand requiring the plaintiff to serve and file such a note of issue and stating that the default by the plaintiff in complying with such demand within forty-five days after the service of such demand will serve as a basis for a motion by the defendant for dismissal against him for unreasonably neglecting to proceed. In the event that such a note of issue is served and. filed within such forty-five days, the motion to dismiss shall be denied. In the event that such a note of issue is not served within such forty-five days, the court may grant such motion unless the plaintiff shows justifiable excuse for delay and a good and meritorious cause of action.” (Emphasis supplied.)

The first paragraph of CPLR 3216 is substantially identical to the old section 181 of the Civil Practice Act. The second paragraph of 3216 was added by an amendment effective September 1, 1964.

The plaintiff contends that the second paragraph of 3216 precludes the courts from granting a motion to dismiss for general delay based on a plaintiff’s inactivity prior to the filing of a note of issue.

According to this interpretation of 3216, where the plaintiff ■ has failed to file a note of issue, the defendant must serve on the plaintiff the 45-day demand. If the plaintiff complies with the demand, and serves and files a note of issue, ‘ ‘ the motion to dismiss shall be denied.” Thus, a plaintiff who has delayed, even an excessively long period, in this manner can save his action, unless or until he subsequently is guilty of unreasonable failure to proceed.

The Legislature has recognized that 3216 does not lend itself to this interpretation. Accordingly, in 1965, the Legislature enacted an amendment to the section. The amendment provided specifically that, before a note of issue is filed, the 45-day demand must be served by a defendant moving to dismiss on grounds of general delay and, if a plaintiff complies with the demand, no motion to dismiss may be granted. It also provided that only subsequent delay, after the filing of a note of issue, would warrant dismissal for general delay.

The Governor vetoed this amendment, stating clearly his reasons therefor:

“In strongly urging disapproval of the bill, the Presiding Justices of the Appellate Divisions for the Second, Third and Fourth Departments have stated that this bill would impose an wmecessary limitation on the discretion of the courts in dealing with neglected actions, and that the present law affords ample protection for plaintiffs who have a meritorious cause of action.

“Disapproval is also recommended by the New York State Bar Association, the Association of the Bar of the City of New York, the Committee to Advise and Consult with Judicial Conference on the CPLR and others.” (1965 N. Y. Legis. Annual 551; italics supplied.)

We agree that the courts, in dealing with neglected actions, should not be unduly hampered. The 1965 amendment would have accomplished this result. The 1964 amendment does not lend itself to this interpretation. It states: “ No such motion based upon the failure of the plaintiff to serve and file a note of issue

The second paragraph of 3216 only applies, as we indicated in Commercial Credit Corp. v. Lafayette Lincoln-Mercury (17 N Y 2d 367), when the motion is based on the failure of the plaintiff to serve and file a note of issue. In the instant case the defendant based its motion on general delay. The 45-day demand requirement was thus inapplicable.

It has been urged that this interpretation of 3216 would emasculate the statute, since defendants would always base their motions on general delay and thereby avoid the 45-day demand requirement.

This erroneously presupposes that the courts are bound by the defendant’s characterization of his motion. Where a defendant moves to dismiss, characterizing his motion as one for ‘ ‘ general delay ’ ’, a court, considering all the factors, can find that there has' been no general delay, that the , plaintiff diligently engaged in pretrial conferences, conducted examinations before trial with dispatch and, in general, moved the action along speedily.

The court could thus determine that the defendant’s only complaint is that, now that all the pretrial activity has been speedily conducted, the plaintiff has delayed in filing a note of issue. It would then be proper for the court to deny defendant’s motion, since it would be, in fact, based merely on a slight, delay in filing the note of issue, and indicate that he must comply with the 45-day demand requirement.

This interpretation safeguards the right of courts to dismiss in their discretion for general failure to prosecute, and also applies the 45-day demand requirement where the only delay in the action is a delay in filing a note of issue, not amounting to general delay. Although this might seem unduly harsh to plaintiffs who have meritorious causes of action, a rule which would permit plaintiffs’ attorneys to delay inordinately prior to the filing of a note of issue without risk of dismissal for failure to prosecute would hardly encourage their diligent prosecution of actions.

The facts in Salama v. Cohen and Tomich v. Cohen (16 N Y 2d 1058) were quite similar to the facts in the instant case. In Salama and Tomich we reversed the Appellate Division’s dismissal of an action for general delay prior to the filing of a note of issue. In our entry, we stated: “ A motion to dismiss under CPLB 3216 cannot be granted prior to the filing of a note of issue unless defendant has first served a written demand on the plaintiff to serve and file the note of issue within 45 days in accordance with the terms of the statute.”

Insofar as this statement implies that the application of the 45-day demand requirement of 3216 is extended to include those cases where there has, in fact, been general delay prior to the filing of a note of issue, it should not be followed.

The course of our decisions in Fischer v. Pan Amer. World Airways (16 N Y 2d 725); Salama v. Cohen and Tomich v. Cohen (supra), and Commercial Credit Corp. v. Lafayette Lincoln-Mercury (supra) has indicated to one commentator, at least (see Siegel, Supplementary Practice Commentary, McKinney’s. Cons. Laws of N. Y., Book 7B, CPLR [1966 Cum. Supp.]; Siegel, Seminar on CPLB Case Law and Statutory Developments, p. 41 ff. [1966]), that we would apply the second paragraph of 3216 to any motion to dismiss for failure to prosecute made prior to the filing of a note of issue, but that once the 45-day demand requirement is met, the defendant can then move to dismiss based on the plaintiff’s previous general delay.

Under such an interpretation, a defendant would be forced to take a meaningless step with ensuing delay before he could move-to dismiss based on general failure to prosecute. The plaintiff’s compliance with the defendant’s demand would likewise be meaningless, since the defendant could then move to dismiss on the basis of the plaintiff’s prior delay.

We do not ascribe to the Legislature an intent to set up a superfluous procedure which would leave the relative positions of the parties unchanged.

Bather, our interpretation of 3216 is that it leaves untouched the general power of the courts to dismiss actions in their discretion for general delay, but mandates the 45-day demand requirement where the only basis for the motion is a delay in the filing of a note of issue not amounting to general delay.

If the basis of the motion to dismiss is, in fact, failure to file a note of issue, the 45-day demand requirement of the second paragraph of 3216 applies, regardless of the defendant’s characterization of his motion.

The facts of the case before us could clearly indicate a general delay on the part of the plaintiff. Accordingly, the order of the Appellate Division granting the defendant’s motion to dismiss should be affirmed, without costs.

Bubke, J.

(dissenting). Clarity in a legislative enactment is always sought, rarely achieved. In the ease of CPLR 3216 then, where the language is plain and the legislative intent is manifest, it is truly difficult to understand how the majority of the court can with such facility avoid the obvious meaning of the rule and impose its own judicial gloss thereon in order to supposedly safeguard the ‘1 general power of the courts ” to control court calendars in regard to apparently neglected actions. We prefer to think that, barring any unconstitutional or otherwise invalidating aspect of a statute, it is to be construed as the language reads and the Legislature intended, and not as we would have written it had wé been legislative draftsmen.

CPLR 3216 was originally taken without any significant change from section 181 of the Civil Practice Act when the CPLR went into effect in 1963. The section then provided for a dismissal of the plaintiff’s case when he “ unreasonably neglects to proceed in the action.” In December, 1963 the Appellate Division, First Department, interpreted the section in Draconian terms when it decided the case of Sortino v. Fisher (20 A D 2d 25 [1st Dept., 1963]). In that case the court granted a dismissal on the ground of failure to prosecute, and spelled out in detail what it considered to be a valid excuse for delay, it being made clear that without such a valid excuse a delaying plaintiff was wide open to a successful 3216 motion. Prompted by this decision, Plaintiffs’ Bar in the State succeeded in having the 1964 amendment to 3216 passed and signed into law. The statute, as it now reads, is quoted in full in the majority opinion. Suffice it here to say that the Plaintiffs’ Counsel were not intent on providing defendants with a new remedy to combat delaying tactics, viz., a motion to dismiss for failure to file a note gf issue, Rather, one may be sure, their intent was to limit the scope of 3216 and the decision in Sortino v. Fisher (supra) —to argue to the contrary is unjustifiable. How, then, did they effect such limitation?

The statute is clear: no motion to dismiss for neglect in prosecuting an action can be entertained by the court unless it is timely made, i.e., unless a note of issue has already been filed or unless a 45-day written demand has been served on the plaintiff therefor and the 45 days have elapsed without plaintiff’s filing the note of issue. (Siegel, Seminar on CPLR Case Law and Statutory Developments, pp. 41-42 [1966].) This court expressly so held in Salama v. Cohen (16 N Y 2d 1058 [1965]).

The facts in that case and its connected case, Tomich v. Cohen, are undistinguishable from the circumstances here present. Therein no noté of issue had ever been filed, and a year and a half had elapsed since the last pretrial activity. Defendant’s motion to dismiss on the ground of general delay was denied by Special Term since defendant had not followed the prerequisite procedures of the amendment to 3216 which had just then become effective. The Appellate Division reversed, applying the standards laid down in Sortino v. Fisher (supra). The court held that, since the motion to dismiss was made on the ground of ‘ ‘ general delay” and was not based on plaintiff’s failure to serve and file a note of issue, the amendment to 3216 was not applicable. As the majority here points out, we reversed because the Appellate Division’s construction of the statute was erroneous. Upholding the clear wording of the provision as amended, this court felt that, while there may have been merit in the Sortino rule, the Legislature had clearly indicated a different rule to be applied, and that the court below was exploiting the language of the amendment to defeat its obvious purpose. Notwithstanding the fact that nothing has occurred in the year which has elapsed since those decisions to indicate that a new rule should be applied, the majority today espouses an entirely different theory, thereby overruling Salama and Tomich — decisions which were rendered in December of 1965 by a unanimous court.

The court’s emphasis on the language used in the first sentence of the second paragraph of 3216 (which language has undergone no change since our decisions in Salama and Tomich) is in obvious disregard of the manifest legislative intent. It also fails to recognize that the filing of a note of issue is the event from which undue general delay has been and is to be measured (unless, of course, a 45-day written demand has been made and no note has been filed).

The touchstone and apparent basis of its opinion is, ironically enough, in the very legislative process which it so adroitly ignores. Rather than enforce compliance with the statute as written, it looks to an abortive amendment by which the Plaintiffs’ Bar attempted to legislatively correct several Appellate Division decisions. To view this amendment and the Governor’s veto in proper perspective, a brief chronological examination is necessary.

Following the passage of the amendment to 3216 in 1964, which to the belief of all limited the Sortino rule, the First Department reaffirmed its Sortino attitude by holding that the procedures set up in the 1964 enactment did not apply to a motion to dismiss made upon grounds of ‘1 general delay. ’ ’ (Mulinos v. Coliseum Constr. Corp., 22 A D 2d 163 [1st Dept., decided on Dec. 8, 1964] and Brown v. Weissberg, 22 A D 2d 282 [1st Dept., decided on Dec. 17, 1964].) Realizing this, Plaintiffs’ Bar then attempted to overrule these decisions by its proposed 1965 amendment to the statute, the failure of which the majority today emphasizes. Passed by the Legislature, the bill was vetoed by the Governor, upon the advice of the Presiding Justices of the Second, Third, and Fourth Departments. The Court of Appeals then handed down Fischer v. Pan Amer. World Airways (16 N Y 2d 725 [1965]) which only held that, in order to dismiss for failure to file a note of issue, the 45-day demand procedure had to be first complied with.

The First Department still maintained that these procedures were hot applicable to a “ general delay ” motion. (Roberts v. New York Post Corp., 24 A D 2d 714 [1st Dept., 1965].)

Only then were Salama and Tomich decided — after the Appellate Division had misconstrued the amendment in Mulinos and Brown, after the legislative attempt to overrule these decisions had been thwarted, after Roberts had reiterated the Mulinos and Brown rulings. And in Salama and Tomich a unanimous Court of Appeals made it clear — to the courts below, the Legislature and the Bar in general — that CPLR. 3216 was to be applied as written, i.e., Mulinos, Brown and Roberts had stood for erroneous propositions, and the attempted amendment by the Legislature in 1965 had been unnecessary. (See, e.g., Shabot v. Quincy Mut. Fire Ins. Co., 24 A D 2d 972 [1st Dept., 1965]; Siegel, Supplementary Practice Commentary to CPLR 3216 [McKinney’s Cons. Laws of N. Y., Book 7B, CPLR, 1966 Cum. Supp.].) The Court of Appeals would construe the statute as everyone knew it had been intended.

The controversy was thereafter dead, until unintentionally resurrected by our unanimous decision in Commercial Credit Corp. v. Lafayette Lincoln-Mercury (17 N Y 2d 367, 372 [1966]) where Chief Judge Desmond had this to say in reaffirming Salama and Tomich: “ We conclude that this second paragraph [the 1964 amendment] was added to rule 3216 to cover the former situations where pleadings were served and filed, then the plaintiff did nothing for a long time [general delay], then the defendant under the old practice would put the plaintiff in jeopardy by moving on five days’ notice to dismiss because the plaintiff had not put the case on the calendar.” (Supra, p. 372.) As a result, notwithstanding the confusing dictum contained in Comonercial Credit, Salama and Tomich have stood for the unanimous viewpoint of this court until today, when the court now sees fit to reverse itself and to adopt the erroneous rule espoused in Mulinos, Broivn and Roberts, a rule which had been disapproved in Salama and Tomich. If it is the purpose of the courts to produce order out of chaos, never has this purpose been more patently frustrated.

The point, we think, is clear: in December of 1965 Salama and Tomich stood for the unanimous viewpoint of the Court of Appeals; today these cases are overruled because a majority of the court so decrees. And nothing has taken place in the interim to warrant such a flagrant disregard of the clear legislative intent. As Mr. Justice Benjamin stated in July of 1966, this court’s construction of 3216 must be complied with “in view of the history of this rule and its seemingly clear language; in view of the Legislature’s apparent intent; and in view of the Bar’s general interpretation of the rule ”. (Lunn v. United Aircraft Corp., 26 A D 2d 698, 699 [2d Dept., 1966].)

The position of the majority is that CPLB 3216 as amended “leaves untouched the general power of the courts to dismiss actions in their discretion for general delay,” unlimited in the slightest by the amendment whose purpose was obviously to limit the statute to some degree. Such a holding classifies the amendment as a supererogatory provision, a meaningless and nugatory act, and indicates that the court has usurped the law-making power reserved to the .Legislature.

Furthermore, from a purely policy standpoint we do not agree that the statute as amended and as intended would ‘ ‘ unduly hamper ’ ’ the courts in dealing with allegedly neglected actions. On the contrary, it simply provides reasonable procedural safeguards to ensure that meritorious actions will not be dismissed without full opportunity to prosecute. The procedures contained in 3216 effectively protect the courts from carrying long-delayed cases, give defendants adequate protection against the threat of endless revival of dormant suits (since the procedures are implemented at the defendant’s option), and afford plaintiffs some guarantee against dismissals resulting from inadvertence. A further advantage of the amendment is that it operates without application to the courts and thus enables the courts to avoid the consideration of untimely and unwarranted motions to dismiss. The rule today adopted by the majority effectively does away with a motion to dismiss ‘1 for a failure to file a note of issue. ” No motion to dismiss will be so captioned in the future; rather, under any and all circumstances, the motion will be based on “ general delay,” whether such is provable or not. Formalism of this kind is wholly inconsistent with the very purpose of the enactment of the Civil Practice Law and Buies in 1963.

The rule espoused by the Appellate Division in Sortino v. Fisher {supra), limited by the amendment to CPLB 3216 passed in 1964 (as so held in Salama and Tovnich, supra), and once more resurrected here by the majority of the court, has been described as “ more harsh in its impact on clients Avith meritorious .claims than seems necessary”. (4 Weinstein-KornMiller, N. Y. Civ. Prac., par. 3216.04, p. 32-203 [1966].) Even if this were not so, even if we were desirous of approving the result intended by that case, the Legislature has limited our ability to do so by its limiting of CPLR 3216. In accordance with our decisions in Saloma and Tomich, therefore, and in accordance with the clear language of 3216, the manifest legislative intent and the recognized acceptance thereof by the Bar in general, we would reverse in the present case because of the defendant’s failure, in the absence of a filed note of issue, to serve a written 45-day demand therefor as required by CPLR 3216 as amended.

Judges Van Voorhis, Soileppi and Bergan concur with Judge Keating; Judge Burke dissents in an opinion in which Chief Judge Fuld concurs; Judge Breitel taking no part.

Order affirmed. 
      
       The plaintiff’s attorney did send a letter to the defendant’s attorney informing him that she now resided in New Mexico.
     
      
       Cf. L. 1967, ch. 770, eff. Sept. 1, 1967.
     