(dissenting). The majority are now holding CPLR 3216 to be unconstitutional in part. They conclude that the section, by its terms, deprives the court of its inherent power to control its own calendars, that since the court is constitution*78ally created any limitation upon its control must be by constitutional means, and the method chosen does not conform to that requirement.
I do not quarrel with many of the propositions so ably stated in the majority opinion. I am unable .to agree, however with the conclusion that the statute is an unconstitutional attempt to infringe upon power inherent in the court and must be disregarded.
CPLR 3216 is a procedural rule governing dismissals. The grounds which ordinarily and reasonably serve as grounds for dismissal are recognized and enumerated in the statute. The limitation upon their immediate application is the 45-day notice requirement. The conditions precedent to dismissal are three: (1) issue must have been joined, (2) one year must have elapsed since the joinder of issue, and (3) a 45-day written demand to resume prosecution and serve and file a note of issue within such period must be served by registered or certified mail. Until such note of issue is served and filed the case is not actually on the calendar of the court. Consequently, the court is not hindered at that stage in the control of its calendar.
Every action commenced involves some client’s interests. The quality of representation may vary. Where the lawyer is dilatory, the case may be dismissed summarily or on motion in the absence of a statute requiring preliminary notice. And this would be true regardless of the merits of the cause. On balance this would seem a severe penalty to visit upon any unoffending client. While such dismissal ordinarily is not on the merits (CPLR 3216, subd. [a]), if the Statute of Limitations has created a bar (CPLR 205; 1 Weinstein-Korn-Miller, N. Y. Civ. Prac. § 205), the client’s only recourse is against the attorney. This could be an unsatisfactory remedy. The Legislature probably recognized the problems attendant upon summary dismissal, or dismissal upon notice, and in an effort to protect the innocent client and yet not unduly hamper the courts, enacted the 45-day notice provision. The court is not deprived of power to impose lesser penalties for unreasonable delay (CPLR 3216, subd. [a]; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3216.04, 3216.15). The legislative objective is desirable, and the means adopted reasonably calculated to achieve a proper end.
While the court necessarily must have a broad control over its calendars, the Legislature has, upon occasion, provided, by statute, how that calendar shall be run in terms of priority (see CPLR 3403, 3404) and how a trial shall be conducted (CPLR 4012 et seq.). There is even a limitation on the granting *79of leave to replead unless the court is satisfied the party has good ground to support his cause (CPLR 3211, subd. [e]). The time limitations for certain motions (for example, CPLR 3123) or procedures (CPLR 3031 et seq.) may, directly or indirectly, affect the calendar. In other words, it would hardly be asserted that every legislative action affecting the calendars constitutes an unconstitutional interference. The fact that the section in question, or portion thereof, imposes a restriction upon the exercise of the court’s power is not alone sufficient to render the section unconstitutional where, in fact it does not deprive the court of -such power.
Since the 45-day notice required by CPLR 3216 was not given, the order denying the motion should be affirmed.
Eager and McNally, JJ., concur with Steuer, J.; Stevens, J. P., dissents in opinion in which Tilzer, J. concurs.
Order entered September 11, 1967, reversed on the law with $30 costs and disbursements to the appellant, and the motion dismissing the action for lack of prosecution granted with $10 costs.