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COURT OF APPEALS OF NEW YORK 1969.NY.42340 <>; 250 N.E.2d 690; 25 N.Y.2d 237 decided: July 1, 1969. VIOLA COHN ET AL., APPELLANTS,v.BORCHARD AFFILIATIONS, RESPONDENT; BLANKENSHIP, GRUNEAU AND OSTBERG, INC., APPELLANT, V. NTA TELESTUDIOS, LTD. ET AL., RESPONDENTS Cohn v. Borchard Affiliations, 30 A.D.2d 74, reversed. Counsel Abraham Markhoff, Martin S. Rothman and Abraham W. Sereysky for appellants in the first above-entitled action. Louis J. Lefkowitz, Attorney-General (Maria L. Marcus and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law in the first above-entitled action. Counsel Lewis I. Wolf and Henry Wolfman for respondent in the first above-entitled action. Counsel Theodore Pearle, Daniel Eisenberg and Stephen Ross for Brooklyn Bar Association, amicus curiae, in the first above-entitled action. Counsel Herman B. Gerringer and Benjamin H. Siff for New York State Association of Trial Lawyers, amicus curiae, in the first above-entitled action. Joseph J. Rose for New York State Mutual Insurance Association and others, amici curiae, in the first above-entitled action. Counsel Theodore D. Rothenberg for Nassau County Lawyers Association of Long Island, amicus curiae, in the first above-entitled action. Counsel Philip Pierce and Charles P. Axelrod for appellant in the second above-entitled action. Counsel Ernest Walton, S. Earle Levene and David F. Wolfe for respondents in the second above-entitled action. Chief Judge Fuld. Judges Burke, Scileppi, Bergan, Breitel and Jasen concur. Author: Fuld

Cohn v. Borchard Affiliations, Chief Judge Fuld. Judges Burke, Scileppi, Bergan, Breitel and Jasen concur.

Author: Fuld

 In the two cases before us, the defendants-respondents challenge the constitutionality of CPLR 3216, as enacted in 1967 (L. 1967, ch. 770, eff. Sept. 1, 1967), on the ground that the legislation deprived the court of its inherent power to control or regulate its own calendar. The new statute provides, among other things, that a defendant, before moving to dismiss the complaint for failure or neglect to prosecute the action, must serve upon the plaintiff "a written demand * * * requiring [him] * * * to serve and file a note of issue within forty-five days after receipt of such demand".*fn1 The precise question presented is rather narrow, dealing with the validity of this single provision of the CPLR, but involved are highly significant considerations concerning the constitutional limits on the power of the Legislature to prescribe procedural rules for the courts.

Before considering the constitutional question, we turn briefly to the facts of the cases before us.

Cohn v. Borchard Affiliations

This is a negligence action, brought by Mrs. Viola Cohn and her husband, for personal injuries and mental anguish which she allegedly suffered when, on March 23, 1961, she was trapped in an elevator in a building owned by the defendants. The suit was commenced in February, 1964, and, following the defendant's service of his answer -- accompanied by a demand for a bill of particulars -- no further activity occurred until March 29, 1967. On that date, the defendant moved for an order dismissing the complaint "for the plaintiffs' general neglect in diligently prosecuting this action". The motion, adjourned several times, was submitted for decision on September 1, 1967, the day on which new rule 3216 went into effect. Mr. Justice Fine, to whom the motion was submitted, denied it about two weeks later, noting that the defendant had not served the 45-day demand as the statute required.*fn2

On appeal, however, a closely divided Appellate Division reversed the resulting order and directed that the motion be granted and the complaint dismissed (30 A.D.2d 74). Holding that the newly enacted rule was unconstitutional, the Appellate Division declared that a court has inherent and constitutionally protected power to dismiss a complaint for failure to prosecute and that the effect of the new provision was to "emasculate" this power by giving the plaintiff the absolute right to place his case on the calendar before such a dismissal could be considered (30 A.D.2d, at p. 77). Justice Stevens, in a dissent in which Justice Tilzer joined, argued that the demand provision merely gave plaintiffs a measure of protection against the neglect or default on the part of their attorneys and did not "unduly hamper the courts" (30 A.D.2d, at p. 78). The plaintiffs have appealed to us as of right.

Blankenship, Gruneau & Ostberg, Inc. v. NTA Telestudios, Ltd.

The complaint in this case alleges that the defendant, NTA Telestudios, in violation of a contract with the plaintiff, appropriated for its own use a method which the plaintiff had developed for measuring audience reaction to television broadcasts. The action was commenced in August of 1960, bills of particulars were submitted and several motions were litigated by each party. In September of 1964, the plaintiff served a notice to take a deposition which, upon mutual consent of the parties, was adjourned sine die. No further action was thereafter taken by the plaintiff until May of 1968, when an attempt was made to reschedule the long-delayed deposition. The defendant opposed the step and responded with the present motion to dismiss for failure to prosecute. In its motion papers, the defendant indicated that it had not considered it necessary to comply with the 45-day notice requirement of CPLR 3216 in light of the Appellate Division's decision in the Cohn case, which had been handed down a short time before.

The court at Special Term (Dickens, J.) granted the motion, noting that the "inordinate delay of over four years * * * is inexcusable." Since the court and the parties felt themselves concluded by the earlier decision of the Appellate Division in Cohn, there was no discussion of the constitutionality of the CPLR provision and on appeal it was unanimously affirmed without opinion. In this instance, the appeal has been taken by leave of our court.

Constitutionality of CPLR 3216

When the CPLR was first enacted, rule 3216 consisted, in its entirety, of the general language, now contained in its subdivision (a), authorizing courts to dismiss a pleading "[where] a party unreasonably neglects to proceed". This was but a re-enactment of a similar provision contained in the superseded Civil Practice Act (ยง 181). In December of 1963, shortly after the CPLR went into effect, however, the Appellate Division for the First Department handed down its decision in Sortino v. Fisher (20 A.D.2d 25). The court in that case adopted the view that the principal function of the motion to dismiss was to reduce congestion on court calendars. Starting with the premise that "it is almost invariably true that neglected actions are of little or no merit" (20 A.D.2d, at p. 28), the court proceeded to delineate a set of standards designed to insure that any case which had been delayed an unreasonable length of time would be dismissed unless (1) the action was shown to have substantial merit and (2) an acceptable excuse was presented for the neglect in placing it on the calendar. By enumerating the limited excuses for delay which would be considered acceptable, the court introduced, for the first time, fixed rules to govern what had previously been an "almost purely discretionary area of procedural law". (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3216.04.) Shortly after the Sortino case was decided, the Legislature amended the statute so as to lessen its impact (L. 1964, ch. 974). In its modified form, it provided that a motion to dismiss could not be brought until six months after the joinder of issue and, when the motion was "based upon the failure of the plaintiff to serve and file a note of issue", it had to be preceded by service of a 45-day demand upon the plaintiff that he serve and file such note of issue. The First Department, interpreting this amendment, accorded it an extremely narrow construction. (See Mulinos v. Coliseum Constr. Corp., 22 A.D.2d 163; Brown v. Weissberg, 22 A.D.2d 282.) The court decided that the 45-day demand provision was only intended to apply when the motion was predicated upon a failure to file a note of issue, and was not required when there was also "general delay" on the part of the plaintiff. The Legislature attempted to overturn these restrictive decisions by a new measure which it passed in 1965. In the plainest of terms, the 1965 bill required that the 45-day demand prescription was to be applied to all motions made prior to the filing of a note of issue, whether the delay was characterized as "general" or otherwise.

Although the Governor vetoed the proposed 1965 amendment (see Message of the Governor, 1965 Legis. Ann., p. 551), the same result was accomplished by the decision in Salama v. Cohen (16 N.Y.2d 1058). We held in that case that, even under the rule as it then read, "a motion to dismiss under CPLR 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" (16 N.Y.2d, at pp. 1059-1060).

However, the effectiveness of the Salama decision was considerably undercut by Commercial Credit Corp. v. Lafayette Lincoln-Mercury (17 N.Y.2d 367). It was there determined that, even after the filing of a note of issue, the court could dismiss a complaint for "general delay" occurring before the note of issue was filed. Under this decision, a plaintiff, although he complied with the 45-day demand and served his note of issue, was still liable to have his complaint dismissed on the basis of the precedent "general delay." Then came this court's decision in Thomas v. Melbert Foods (19 N.Y.2d 216). Stating that the Commercial Credit case had reduced the 45-day notice requirement to a "meaningless gesture," the court overruled Salama v. Cohen (16 N.Y.2d 1058, supra) and adopted the distinction, originally formulated by the Appellate Division in Mulinos (22 A.D.2d 163, supra) and Brown (22 A.D.2d 282, supra), between motions premised upon general delay -- for which no 45-day demand need be given -- and those based solely upon the failure to file a note of issue -- to which the statute would still apply.

Within two months after the Thomas decision, the Legislature enacted the version of rule 3216 involved in the present appeals (L. 1967, ch. 770). As it now reads, the statute permits of no doubt as to its meaning: no motion to dismiss for failure to prosecute, brought prior to the filing of a note of issue, may be made unless the defendant has first served the plaintiff with a demand that he file a note of issue. In other words, under the 1967 change, any plaintiff who has neglected to ...

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