Kurbonov v Cohen
Attorneys and Parties
Brief Summary
Personal injury—motor vehicle accident; procedural dismissal for failure to prosecute under New York CPLR 3216 [permits a court to dismiss an action for want of prosecution only after a written demand requiring the plaintiff to resume prosecution and to serve and file a note of issue within 90 days after receipt of such demand].
The Supreme Court, Kings County, granted the defendants’ and third-party defendant’s CPLR 3216 motions to dismiss the complaint for failure to prosecute.
The Appellate Division reversed the CPLR 3216 dismissal and denied the dismissal motions.
Defendants’ proof showed the 90-day demands were not received by the plaintiffs (mail was returned), and the third-party defendant offered no independent proof of proper 90-day notice; because the 90-day period runs from receipt, not mere service, the statutory precondition to dismissal was not met.
Background
Plaintiffs, passengers in a vehicle owned and operated by third-party defendant Dilshod K. Isakov, alleged injuries from a collision with a vehicle operated by Marlene E. Cohen and owned by N. Ikey Cohen. Plaintiffs sued the Cohens in July 2019; the Cohens answered and commenced a third-party action against Isakov for contribution and indemnification. In March 2022, plaintiffs’ counsel was relieved and the action was stayed to allow plaintiffs to obtain new counsel. In August 2022, after the stay expired and while plaintiffs were pro se, the Cohens sent CPLR 3216 90-day demands by certified mail, but the mailings were returned—United States Postal Service (USPS) tracking reflected one attempted delivery, a redelivery reminder, and then return to sender. In August 2023, the Cohens moved to dismiss under CPLR 3216; in October 2023, Isakov separately moved, relying on the Cohens’ proof and an affirmation asserting a “similar demand.” Plaintiffs, by new counsel, opposed, arguing the 90-day notices were never delivered.
Lower Court Decision
By order dated May 8, 2024, the Supreme Court, Kings County (Velasquez, J.), granted those branches of the Cohens’ and Isakov’s motions that sought dismissal of the complaint under CPLR 3216 for failure to prosecute.
Appellate Division Reversal
The Appellate Division reversed the order insofar as appealed from and denied the CPLR 3216 dismissal motions. The court held that the 90-day period runs from receipt, not service, and the moving parties’ own submissions showed plaintiffs did not receive the Cohens’ 90-day notices; Isakov likewise failed to prove service and receipt of any separate 90-day notice.
Legal Significance
Reaffirms that CPLR 3216’s 90-day demand is a strict, jurisdictional-type precondition to dismissal: defendants must establish actual receipt by the plaintiff; returned or undelivered mailings are insufficient. An attorney’s bare assertion of a “similar demand,” without proof of receipt, will not satisfy the statute.
For a CPLR 3216 dismissal, ensure the 90-day demand is actually received by the plaintiff; proof of mailing alone—or notices returned as undelivered—will not trigger the 90-day clock, and dismissal will be denied.