Emotional CPLR
One rarely thinks of legal statutes as having feelings, but some do, as the First Department reminded us this week. In F.E. v. Ebrahim, 2026 NY Slip Op 00309 (1st Dep’t 2026), the Court reaffirmed the concept of CPLR 3216 being an ‘extremely forgiving’ statute when reviewing dismissals under the rule.
In Ebrahim, the Court addressed circumstances where a party seeks to vacate a dismissal under CPLR 3216. After the defendant timely and properly served a 90 Day Notice pursuant to CPLR 3216, and plaintiff defaulted in responding, the trial court granted plaintiff’s motion to file a Note of Issue two or three days late, and denied defendants’ motion to dismiss the Complaint for failure to timely file the Note of Issue or move for an extension under CPLR 3216. The First Dept. affirmed the trial court’s rulings, and presented two interesting issues in determining when a party should be ‘forgiven’ in its failures.
First, the Appellate Division determined defendants properly served the 90-day notice under CPLR 3216 by filing it in the New York State Electronic Filing System, instead of through certified or registered mail as required by the statute. In doing so, the Court acknowledged defendants’ oversight in following the statute but found it was ‘at most a procedural irregularity that should be overlooked in the absence of prejudice. In making this determination, the Court cited to a NY Court of Appeals case from 1985 (decades before the implementation of NYSCEF), Balancio v. American Opt. Corp., 66 NY2d 750, 751, a one-paragraph ruling that held:
The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant’s motion to dismiss for neglect to prosecute (citations omitted).
In Balancio the Court of Appeals noted that plaintiff did not dispute receipt of the 90 Day Notice; Ebrahim does not address plaintiff’s receipt of the notice, but when filed on NYSCEF notice would have been sent to all counsel, thus there is a presumption of receipt of the notice.
Balancio has been routinely cited among the Appellate Divisions in support of the argument that failure to comply with the service requirements of CPLR 3216 does not render a defendant’s motion as jurisdictionally defective, but may be forgiven if there is no showing of prejudice and plaintiff demonstrates a meritorious cause of action. Note, however, that after overlooking the procedural irregularity in service of the notice, the Court of Appeals went on to affirm the Second Department’s reversal of the motion court, which had denied the motion to dismiss (on other grounds). Thus, in Balancio, plaintiff’s action was dismissed.
Second, the First Department affirmed the granting of leave for plaintiff to file a late Note of Issue, stating:
CPLR 3216 is an “extremely forgiving” rule which “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed.”
The Court noted plaintiff’s motion to file a late Note of Issue was two or three days late. The Court further noted plaintiff presented circumstances that made it reasonably impossible to certify the action was ready for trial (though the Court did not specify these ‘reasonable circumstances.’).[i] Additionally, the plaintiff had presented an expert affidavit in support of the meritorious action, and the Court found there was no evidence plaintiff intended to abandon the action, of persistent neglect by the plaintiff, or prejudice to the defendant.
It is interesting to note how the First, Second and Third Departments utilize the emotional language of ‘extremely forgiving’ in describing the rule under CPLR 3216. The Fourth Department,[ii] while acknowledging the requirements under CPLR 3216, has not sought to describe the statute in anthropomorphic terms.
Practical Practice Point:
The above case demonstrates the ability of courts to ‘forgive’ the acts of wayward lawyers who fail to comply with statutory and case law in litigation. Both parties were ‘forgiven’ by the court here, as defendants’ failure to comply with service provisions was not a barrier to moving to dismiss, and plaintiff’s failure to timely file a Note of Issue and a motion for a late Notice of Issue was not a barrier to proceeding in litigation.
Remember that CPLR 3216 (“Want of prosecution”) does not require dismissal for failure to timely and properly comply with a 90 Day Notice:
(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.
What does Ebrahim mean for the practitioner? Act quickly and reasonably, provide evidence of meritorious claims or defenses, and fall on your sword, and ask forgiveness under CPLR 3216.
[i] Based upon the Supreme Court NYSCEF Docket, the plaintiff provided the following as the “reasonable excuse for delay:
At the outset it should be noted that there was no delay in moving for leave to filing the note of issue as it was filed within 90 days of the mailing as required by the CPLR.
Plaintiff was unable to certify that all medical records had been exchanged because additional records were obtained from plaintiff and upon learning that the sonogram was spoliated, plaintiff needs a ruling regarding the issue to determine whether additional depositions will be necessary.
Lastly it should be noted that the defendants’ attorneys provided lab results that were not part of the medical record and after review of the same Plaintiff was required to amend her bill of particulars.
Finally, it should be noted that this office has been engaged in ongoing settlement negotiations with the defense firm and this accounted for some of the delay in moving earlier to preclude and to file the note of issue.
NYSCEF Doc. No. 146. The complete Docket can be found here: https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=Umh9fmIQa1UgVBc5o6I1JA%3D%3D&narrow=true
[ii]For a Fourth Department case discussing sua sponte dismissal, and the proper CPLR 3126 Procedure, see Woloszuk v Logan-Young, 237 AD3d 1497 (4th Dept 2025).