Rule 3404 of the New York Civil Practice Law and Rules (“CPLR”) is only two sentences long but generates considerable case law.  The statute applies by its terms only to cases in the supreme and county courts.  It allows the court to “mark off” or “strike” a case from the trial calendar as a result of the plaintiff’s failure to appear for a calendared appearance.  The striking of the case from the trial court’s calendar is not a dismissal.  No court order is issued.  Rather, a marked-off case is noted as such in the clerk’s records and thereupon becomes moribund, as if in a coma.  The case still has existence, but no activity. 

Cases may only be marked off where the note of issue has already been filed and the case is in trial readiness status.  Courts cannot use the mark-off procedure for a plaintiff’s failure to appear if the case is pre-note of issue (“pre-note”).  For pre-note actions and proceedings, there are other remedies available to address a recalcitrant plaintiff’s failure to proceed, such as a dismissal for failing to file a note of issue despite service of a 90-day notice under Rule 3216 of the CPLR; dismissal for failing to take proceedings against a defaulted defendant within one year from when an answer was due under Section 3215(c) of the CPLR; the striking of pleadings for discovery non-compliance under Section 3126(3) of the CPLR; and the dismissal of an action for failure to appear at a scheduled calendar call under Uniform Rule 202.27(b).  

What happens to the moribund case after it has been marked off?  The plaintiff has one year from the marking off to restore the case to the court’s calendar.  The plaintiff must make a motion within that one year period, which is timely even if the motion is not decided until after the year has passed (Luipoli v. Venus Laboratories, Inc., 264 A.D.2d 820 [N.Y. App. Div., 2d Dep’t 1999]; Ronsco Constr. Co., Inc. v. 30 E. 85^th St. Co., 219 A.D.2d 281 [N.Y. App. Div., 1st Dep’t 1996]).  Prior to 2001, case law required that the plaintiff meet a two-pronged burden of proof, that there be a reasonable excuse for counsel’s failure to appear at the prior calendar call and that there be merit to the action (e.g. Balducci v. Jason, 133 A.D.2d 436 [N.Y. App. Div., 2d Dep’t 1987] [no longer good law]; former Uniform Rule 675.5[b]).  That changed in the 2001 case of Basetti v. Nour, 287 A.D.2d 126 (N.Y. App. Div., 2d Dep’t 2001), wherein the court determined that if the restoration motion is made within the statutory year, no particular burden need be met; the plaintiff can have the matter automatically restored by merely asking for that relief (One West Bank, FSB v. Rosenberg, 189 A.D.3d 1600 [N.Y. App. Div. 2d Dep’t 2020]; Chambers v. City of New York, 111 A.D.3d 593 [N.Y. App. Div., 2d Dep’t 2013]).  The mark-off is easily forgiven.  The restoration of the case is ministerial.  The reason no particular burden is required for restoration is that during the first year from the mark-off, the case has never been actually “dismissed.” And non-dismissed actions and proceedings are best determined on their merits.  

It is a different story if the plaintiff fails to make a motion to restore the case within one-year of the mark-off.  The action is deemed abandoned and automatically dismissed upon the one-year anniversary of the mark-off (CPLR 3404[a]).  If the plaintiff wishes to restore a now-dismissed action or proceeding, a four-pronged evidentiary burden must be established.  The plaintiff must establish 1) the lack of intention to abandon the case, 2) a reasonable excuse for the delay in not moving to restore the case within the first year, 3) the potential merits of the action or proceeding, and 4) the lack of prejudice to the non-moving party from the delays (Lopez v. Imperial Delivery Service, Inc., 282 A.D.2d 190 [N.Y. App. Div., 2d Dep’t 2001]).  The failure of a plaintiff to meet any one of the four prongs is fatal to the motion (Martone v. Huang, 216 A.D.3d 1152 [N.Y. App. Div., 2d Dep’t 2023]; Katz v. Robinson Silverman Pearce Aronsohn & Berman, 277 A.D.2d 70 [N.Y. App. Div., 1st Dep’t 2000]).  Certainly, the earlier the post-year motion, the more likely the plaintiff can establish the intent not to abandon the case and the absence of prejudice to non-moving parties.  

Cases may also be marked off the court’s post-note calendar by So Ordered stipulation of the parties.  Stipulations are typically a product of one or more parties not being prepared to proceed as a result of some form of unreadiness, but with the parties expecting the unreadiness to be cured so that the case could be later restored to the calendar.  Counsel should be careful to include in the stipulation the terms and conditions that are to be met for the case to then be restored (e.g., Saint Mary Byzantine Catholic Church v. Kalin, 110 A.D.3d 708 [N.Y. App. Div., 2d Dep’t 2013]).  It seems --- without there being actual case law on the point --- that such stipulations should envision a restoration of the case within one year, because beyond that, CPLR 3404(a) requires a dismissal of the action which can only be vacated by means of a motion to restore.

The mark-off procedure is usually associated with the plaintiffs’ failure to appear for a scheduled calendar or trial.  But it applies equally to non-appearing defendants who have asserted cross claims and counterclaims (Nasuro v. PI Associates, LLC, 78 A.D.3d 1030 [N.Y. App. Div., 2d Dep’t 2010] [cross claims]; Madsguard v. City of New York, 78 A.D.3d 666 [N.Y. App. Div., 2d Dep’t 2010] [counterclaims]).  

Finally, there is a split in the judicial departments about the effect of a court striking a party’s note of issue.  The Third Department holds that a striking of a note of issue is a CPLR 3404 mark-off in and of itself, requiring a dismissal of the case if the note of issue is not restored within one year due to abandonment (e.g., Hebert v. Chaudrey, 119 A.D.3d 1170 [N.Y. App. Div., 3d Dep’t 2014]).  The other judicial departments take a contrary view, that the striking of the note of issue merely places the case into pre-note status where CPLR 3404 does not apply, and as the striking of a note of issue is not a failure to appear for a scheduled calendar as envisioned by the statute (Insuasti v. La Boom Disco, Inc., 209 A.D.3d 725 [N.Y. App. Div., 2d Dep’t 2022]; Thompkins v. Ortiz, 165 A.D.3d 428 [N.Y. App. Div., 1st Dep’t 2018]; Bradley v. Konakanchi, 156 A.D.3d 187 [N.Y. App. Div., 4th Dep’t. 2017]).

Plaintiff attorneys are best advised to avoid allowing any marked-off case to eclipse the one year non-dismissal period of the statute, as courts have discretion to restore, or not restore, any dismissed action after at least one year has passed, and a favorable result on the motion is never guaranteed.

Hon. Mark C. Dillon is a Justice of the Appellate Division, Second Department, an Adjunct Professor of New York Practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries in McKinney’s.