Chavez v 407 Seventh Ave. Corp., 2007 NY Slip Op 02873 (App. Div. 2d)
As the Appellate Term dissenting Justice correctly observed, however, CPLR 3404 does in fact conflict with the provision of the Uniform Rules for the New York City Civil Court governing matters marked off the trial calendar (see 22 NYCRR 208.14 [c]), which, unlike CPLR 3404, makes no provision for the dismissal of an action that has been marked off the trial calendar. The Civil Court’s rules previously contained a section which, in language similar to that of CPLR 3404, provided for the automatic dismissal of actions as abandoned if no motion to restore was made within one year after the case was marked off the calendar (see 22 NYCRR former § 2900.17). That provision, however, was repealed, effective January 6, 1986. The Civil Court rule which now governs actions stricken from the calendar (see 22 NYCRR 208.14 [c]) makes no provision for dismissing an action for neglect to prosecute (see LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [2001]). The replacement of a provision authorizing dismissal with a provision that does not authorize dismissal presumably reflects a deliberate choice to omit any authorization for such a dismissal. Applying the automatic dismissal provision of CPLR 3404 in Civil Court actions conflicts with that deliberate omission, and, therefore, is not permitted by New York City Civil Court Act § 2102.
Contrary to the conclusion of the Appellate Term majority, this Court’s decision in Gonzalez v First Natl. Supermarket (232 AD2d 609 [1996]) should not be read as “implicitly approv[ing] of the application of CPLR 3404 in the Civil Court” (Chavez v 407 Seventh Ave. Corp., id. at 35), as the issue of the statute’s applicability was not presented in that case.
Accordingly, CPLR 3404 does not apply to Civil Court actions, and the Civil Court had no authority to dismiss this action as abandoned. Therefore, the defendants’ motions, inter alia, to dismiss the action should have been denied.
I completely missed this one. Thanks to Joseph D`Agostino for bringing it to my attention.