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U.S. Bank N.A. v Jalas, 2021 NY Slip Op 03506 (3d Dept. 2021

I have always cringed when a case gets dismissed based upon 3215(c) because, in my mind, that was a malpractice trap. As a defendant, I always smiled because it was an I got you moment. As a Plaintiff, well no comment. But the thinking was a 3215(c) dismissal as a plaintiff spelled a letter to the maklpractice carrier.

Not true, I am surprised.

“Although this seven-year delay in moving for a default judgment is lengthy, it does not rise to the level of neglect. To be sure, the Court of Appeals has found neglect to prosecute as a “correct description” when a plaintiff engaged in a “series of discovery defaults,” and the trial court, in its [*3]dismissal order, has referred to the plaintiff’s “failure . . . to comply with discovery deadlines,” “delays,” “disregard for the case management order and scheduling order,” “lack of diligence,” “inactions” and “laxity” (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005] [internal quotation marks omitted]; see Santiago v City of New York, 77 AD3d 561, 561 [2010]). Additionally, although this seven-year delay in moving for a default judgment is comparatively longer than the delays previously before this Court (see U.S. Bank Trust, N.A. v Moomey-Stevens, 168 AD3d at 1171), it is noted that the Second Department recently ruled that the savings provision was still applicable to a subsequent action when the prior action was dismissed pursuant to CPLR 3215 (c) for failure to move for a judgment against a defendant for “almost seven years” because the trial court did not include findings of specific conduct demonstrating a general pattern of delay in proceeding with litigation (HSBC Bank USA, N.A. v Janvier, 187 AD3d 999, 1001 [2020]”