Rule 3216. Want of prosecution. (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.

(b) No dismissal shall be directed under any portion of subdivision
(a) of this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been complied
with:

(1) Issue must have been joined in the action;

(2) One year must have elapsed since the joinder of issue or six
months must have elapsed since the issuance of the preliminary court
conference order where such an order has been issued, whichever is
later;

(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 or her for
unreasonably neglecting to proceed. Where the written demand is served
by the court, the demand shall set forth the specific conduct
constituting the neglect, which conduct shall demonstrate a general
pattern of delay in proceeding with the litigation.

(c) In the event that the party upon whom is served the demand
specified in subdivision (b) (3) of this rule serves and files a note of
issue within such ninety day period, the same shall be deemed sufficient
compliance with such demand and diligent prosecution of the action; and
in such event, no such court initiative shall be taken and no such
motion shall be made, and if taken or made, the court initiative or
motion to dismiss shall be denied. (d) After an action has been placed
on the calendar by the service and filing of a note of issue, with or
without any such demand, provided, however, if such demand has been
served, within the said ninety day period, the action may not be
dismissed by reason of any neglect, failure or delay in prosecution of
the action prior to the said service and filing of such note of issue.

(e) In the event that the party upon whom is served the demand
specified in subdivision (b) (3) of this rule fails to serve and file a
note of issue within such ninety day period, the court may take such
initiative or grant such motion unless the said party shows justifiable
excuse for the delay and a good and meritorious cause of action.

(f) The provisions of this rule shall not apply to proceedings within
rule thirty-four hundred four.