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".
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
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 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 "[w]here a party unreasonably neglects to proceed". This was but a re-enactment of a similar provision contained in the superseded Civil Practice Act (§ 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.)
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
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 place his case on the calendar for any reason automatically gets a second chance to do so before his case may be dismissed.
Opponents of this measure, including the defendants before us, argue that delay in prosecution indicates that the suit lacks merit and that the statute which, in effect (it is said), eliminates the motion to dismiss deprives the court of a necessary and efficient method for getting rid of frivolous actions and reducing calendar congestion. Contrariwise, its proponents maintain that there is no necessary connection between a lawyer's delay in placing a case on the calendar and the merits of his client's case. Thus, they urge, the dismissal of actions on this ground, particularly after the Statute of Limitations has barred all chance of filing another complaint, is an excessive penalty which may work undue hardship in many instances. These are policy considerations about which reasonable men may well entertain different opinions, considerations with which we may not concern ourselves on this appeal. Our only present concern is whether the statute is constitutional, not whether giving a plaintiff a "second chance" by requiring that a 45-day demand be served upon him is desirable or wise.
The opportunity, which the statute affords, to correct a procedural default would seem, on its face, to present no constitutional issue of any significance; our own court rules provide for a similar procedure before an appeal may be dismissed for a failure to file briefs and records. (See Rules of the Court of
Despite the fact that the present Constitution — as indeed has each of its predecessors since 1846 — vests broad power in the Legislature to make procedural rules for the courts, it is contended that the particular procedure involved, the motion to dismiss for failure to prosecute, is such a fundamental part of a court's inherent power that it is beyond the competence of the Legislature to limit or circumscribe its availability. The
When the Supreme Court of New York was created, in 1691, it was accorded all of the powers then exercised by the common-law courts of England. (See 1 Colonial Laws of New York, pp. 226-229.) The only procedure available, under the law as it existed in the 17th century, for dealing with excessive delay in bringing a case to trial was the "trial by proviso". This was a method whereby the defendant would notice the case for trial himself and, if the plaintiff were to fail either to appear or countermand the notice, he could be nonsuited by virtue of his default. If, though, the plaintiff did appear, the case was tried on the merits regardless of any prior delay. (See, e.g., 3 Blackstone, Comm. [4th ed., 1771], pp. 356-357; Cox, Common Law Practice in Civil Actions, p. 58; 1 Dunlap, Supreme Court Practice, pp. 552-553; 2 Tidd, Practice of King's Bench [4th ed., 1808], pp. 690-692. Cf. CPLR 3402.) It was not until 1714, when New York's Colonial Legislature passed an "Act for shortening of Law Suits and Regulating the Practice of the Law" (1 Colonial Laws of New York, pp. 841-843), that, for the first time, failure to bring a case to trial became, in itself, a ground for dismissal.
Consequently, then, since it was the legislative body, and not the court, which first authorized the dismissal of a cause of action as a sanction against plaintiffs who were dilatory in
At issue in the Riglander case (98 App. Div. 101, supra) was a section of the old Code of Civil Procedure (§ 793) which required that cases, which qualified for a preference, be set down for trial on a specified date and that, regardless of the readiness of the parties, the court must hear the case on that day. The Appellate Division found this provision to be unconstitutional on two grounds: first, that it violated due process by forcing a party to trial whether or not he was prepared and, second, that it interfered with the inherent power of the courts to control their calendars. With respect to the second ground, the court said (98 App. Div., at p. 105):
The Riglander case was appealed to the Court of Appeals on a certified question; the court affirmed without stating the grounds for its decision (181 N.Y. 531).
As is manifest, there are important differences between the Riglander decision — or, more precisely, the statute then under consideration — and the present case. The statutory provision there stricken as unconstitutional purported to mandate the
In addition to the fact that neither the language of the Constitution, the history of the provision involved nor relevant judicial authority supports the Appellate Division's conclusion, grave practical considerations exist which militate against it. As Justice STEVENS pointed out in the course of his dissent below, the decision reached by his court not only frustrates the clearly expressed design and desire of the Legislature with respect to this particular question but would throw into jeopardy numerous other provisions of the broad and comprehensive
In short, to hold CPLR 3216 invalid because it interferes with court calendars would cast a constitutional pall over many other provisions and undermine the entire concept of a statutory code of judicial procedure of the type employed in this State since the enactment of the Field Code in 1848. The predominance of a legislatively enacted code of procedure over court-formulated rules resulted from widespread dissatisfaction with the earlier process of developing such rules through judicial decision-making. In recent years, it is true, there has been a tendency in some jurisdictions to return this rule-making function to the court, albeit in much different form.
In conclusion, the Appellate Division's decision invalidating the particular provision before us not only goes counter to the language and the history of this State's Constitution but also throws into doubt a number of other portions of the carefully formulated CPLR. Recognizing, as we must, that the statute — whatever we may think of the policy it expresses — constitutes a valid exercise of the legislative power, the necessity to reverse is clear.
In each case, the order appealed from should be reversed and the motion to dismiss the complaint denied, with costs.
In each case: Order reversed, with costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.