Chavez v. 407 Seventh Ave. Corp – Case Brief Summary (New York)

In Chavez v. 407 Seventh Ave. Corp. (39 AD3d 454, 833 NYS2d 219 [2007]), the Appellate Division held that 22 NYCRR 208.14 "makes no provision for the dismissal of an action" (at 456).

Moreover, the Court noted that the provision providing for dismissal had been specifically deleted from an earlier version of the rules by amendment.

The Court held:

"The Civil Court's rules previously contained a section which, in language similar to that of CPLR 3404, provided for the automatic dismissal of actions as abandoned if no motion to restore was made within one year after the case was marked off the calendar (see 22 NYCRR former 2900.17). That provision, however, was repealed, effective January 6, 1986. The Civil Court rule which now governs actions stricken from the calendar (see 22 NYCRR 208.14 [c] ) makes no provision for dismissing an action for neglect to prosecute (see LoFredo v. CMC Occupational Health Servs., 189 Misc 2d 781, 735 NYS2d 909 [2001]). The replacement of a provision authorizing dismissal presumably reflects a deliberate choice to omit any authorization for such a dismissal." (Chavez at 456.)

The Appellate Division concluded by holding that Civil Court had no authority to dismiss the action as abandoned (id.).