CHEMICAL BANK OF NEW YORK, A NEW YORK BANKING CORPORATION, APPELLANT,
v.
SHERMAN POLAKOV AND FLORA POLAKOV, APPELLEES
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The court held that the filing of a court's sua sponte motion to dismiss for lack of prosecution does not constitute record activity that will prevent dismissal.
The trial court dismissed an action for lack of prosecution after a year of no record activity. The plaintiff failed to file a notice of good cause or…
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PER CURIAM.
The trial court dismissed this action for lack of prosecution. Plaintiff appeals. We affirm.
The trial court, one day short of a year following record activity, filed a sua sponte motion and order to show cause why the action should not be dismissed for lack of prosecution pursuant to Rule 1.420(e), Florida Rules of Civil Procedure. Plaintiff did not file its notice of good cause at least five (5) days prior to the hearing as provided by the mentioned Rule. It did not file a pleading in prosecution of the action during this period. Thus, at the time of the hearing upon the court’s motion, substantially more than one year had elapsed during which there was no record activity. Incidentally, we hold that the filing of the court’s motion in administration of Rule 1.420(e), Fla.R.Civ.P., is not such record activity as will prevent dismissal for failure to prosecute.
Obviously, the court should not have, miscalculated the time and should have waited an additional day before enter ing the order to show cause. Johnson v. Mortgage Investors of Washington, 410 So. 2d 541 (Fla. 2d DCA 1982). However, a plaintiff faced with this situation has only to file a pleading designed toward prosecution plus file its notice of good cause within the requisite five (5) day period before hearing, pointing out the miscalculation, which action would forestall dismissal.
AFFIRMED.
HURLEY and WALDEN, JJ„ concur. DELL, J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Barnett Bank OF E. Polk Cnty. v. Fleming, 508 So. 2d 718 (Fla. 1987)…cause why an action should not be dismissed for lack of prosecution does not constitute record activity sufficient to preclude dismissal. Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983); accord Chemical Bank of New York v. Polakov, 448 So. 2d 1148 (Fla. 4th DCA 1984).…
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Lavender v. Taylor, 704 So. 2d 1157 (Fla. 5th DCA 1998)…prosecute, was not the kind of record activity sufficient to preclude dismissal. See Norflor Construction Corp. v. City of Gainesville, 512 So. 2d 266 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 585 (Fla.1988); Chemical Bank of New York v. Polakov, 448 So. 2d 1148 (Fla. 4th DCA 1984); Nelson v. Stonewall Insurance Co., 440 So. 2d 664 (Fla. 1st DCA 1983); Boeing Co. v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), rev. denied, 412 So. 2d 468 (Fla.1982). As Judge Dauksch wrote for this court in Heinz v. Watson,…
Authorities Cited
- Johnson v. Mortg. Invs. OF Wash., 410 So. 2d 541 (Fla. 2d DCA 1982)