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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 111526
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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As the defendant on an injury case, do I need to file a

Customer Question

As the defendant on an injury case, do I need to file a request for the case to be prosecuted/listed within 90 days in order to be favored in a motion to dismissed for failure to prosecute/list the case? It has been over six months since the last activity
on the case and over eight months since the complaint.
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Is your insurance company representing you on the case?
What state are you in?
Customer: replied 1 year ago.
I'm in NYS. I am prose. No, I don't have representation. The plaintiff requested info on my home owners insurance but I did not have insurance at the time.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

In order to seek dismissal for want of prosecution, you must meet the following conditions pursuant to NY CPLR 3216:

(2) One year must have elapsed since the joinder of issue; (3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

So, they have to not take action for 1 year, then you would file a notice of motion and motion with the court for dismissal for want of prosecution. They have more than only 90 days though to pursue the case. Once the 1 year has passed since you answered, if there has been no activity, then you send them the demand as specified in the CPLR and they have 90 days to respond, then you can file the motion to dismiss if they fail to respond.

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