Rule 3216. Want of prosecution. (a) Where a party unreasonably\nneglects to proceed generally in an action or otherwise delays in the\nprosecution thereof against any party who may be liable to a separate\njudgment, or unreasonably fails to serve and file a note of issue, the\ncourt, on its own initiative or upon motion, with notice to the parties,\nmay dismiss the party's pleading on terms. Unless the order specifies\notherwise, the dismissal is not on the merits.\n (b) No dismissal shall be directed under any portion of subdivision\n(a) of this rule and no court initiative shall be taken or motion made\nthereunder unless the following conditions precedent have been complied\nwith:\n (1) Issue must have been joined in the action;\n (2) One year must have elapsed since the joinder of issue or six\nmonths must have elapsed since the issuance of the preliminary court\nconference order where such an order has been issued, whichever is\nlater;\n (3) The court or party seeking such relief, as the case may be, shall\nhave served a written demand by registered or certified mail requiring\nthe party against whom such relief is sought to resume prosecution of\nthe action and to serve and file a note of issue within ninety days\nafter receipt of such demand, and further stating that the default by\nthe party upon whom such notice is served in complying with such demand\nwithin said ninety day period will serve as a basis for a motion by the\nparty serving said demand for dismissal as against him or her for\nunreasonably neglecting to proceed. Where the written demand is served\nby the court, the demand shall set forth the specific conduct\nconstituting the neglect, which conduct shall demonstrate a general\npattern of delay in proceeding with the litigation.\n (c) In the event that the party upon whom is served the demand\nspecified in subdivision (b) (3) of this rule serves and files a note of\nissue within such ninety day period, the same shall be deemed sufficient\ncompliance with such demand and diligent prosecution of the action; and\nin such event, no such court initiative shall be taken and no such\nmotion shall be made, and if taken or made, the court initiative or\nmotion to dismiss shall be denied. (d) After an action has been placed\non the calendar by the service and filing of a note of issue, with or\nwithout any such demand, provided, however, if such demand has been\nserved, within the said ninety day period, the action may not be\ndismissed by reason of any neglect, failure or delay in prosecution of\nthe action prior to the said service and filing of such note of issue.\n (e) In the event that the party upon whom is served the demand\nspecified in subdivision (b) (3) of this rule fails to serve and file a\nnote of issue within such ninety day period, the court may take such\ninitiative or grant such motion unless the said party shows justifiable\nexcuse for the delay and a good and meritorious cause of action.\n (f) The provisions of this rule shall not apply to proceedings within\nrule thirty-four hundred four.\n
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