On August 6, 2025, the Second Department issued a decision in James B. Nutter & Co. v. Hutson, 2025 NY Slip Op. 04557, holding that a court should not dismiss an action for failure to prosecute if there is a reasonable excuse for the delay, explaining:
Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements. Where a plaintiff fails to file a note of issue within the 90-day period, the court may take such initiative or grant such motion to dismiss unless the defaulting party shows justifiable excuse for the delay and a good and meritorious cause of action.
CPLR 3216 is extremely forgiving of litigation delay, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed. If the plaintiff makes a sufficient showing, the court is prohibited from dismissing the action. Public policy strongly favors the resolution of actions on the merits whenever possible.
Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of Citi’s cross-motion which was pursuant to CPLR 3216 to dismiss the amended complaint insofar as asserted against it. Although the plaintiff failed to comply with Philip’s demand to file a note of issue, the plaintiff established a reasonable excuse for its failure to comply with the demand. The 90-day notice was served on May 11, 2021. The federal COVID-19 foreclosure moratorium to which the plaintiff was subject was in place from March 2020 through July 31, 2021. The plaintiff’s motion, inter alia, for summary judgment on the amended complaint insofar as asserted against Philip was filed shortly after the moratorium was lifted. There was no evidence of a pattern of neglect, and the pendency of the plaintiff’s motion negated any inference that the plaintiff intended to abandon the action. Additionally, the plaintiff demonstrated a meritorious cause of action.
(Internal quotations and citations omitted).