Special Term denied defendant’s motion to dismiss the action for lack of prosecution upon the ground that no 45-day notice pursuant to CPLR 3216 was served. Were it not for the rule it would not be arguable that the unreasonable neglect to prosecute the action shown by this record would mandate dismissal (Sortino v. Fisher, 20 A D 2d 25). Defendant argues that despite the statute the same relief should be accorded, basing its argument on the contention that the statute is unconstitutional.
While the constitutionality of the statute has been raised before (see Commercial Credit Corp. v. Lafayette Lincoln-Mercury, 17 N Y 2d 367, 373), it has not been found necessary to pass on the question. It may fairly be said, therefore, that
CPLR 3216 provides, flatly, that the court, either on its own motion or that of a party, may not dismiss an action for failure to prosecute unless and until issue has been joined and one year has elapsed, and, further, a notice served that prosecution is to be resumed and a note of issue served In 45 days. The vice of the section lies in the fact that it can deprive the court of control of its own calendars.
" It is ancient and undisputed law that courts have an Inherent power over the control of their calendars, and the disposition of business before them, -including the order in which disposition will be made of that business.” (Plachte v. Bancroft Inc., 3 A D 2d 437, 438.) This proposition is axiomatic and citation of the authority is only justified because the felicity of expression bears repetition. As the power is inherent, it is not dependent on legislative authorization (Riglander v. Star Co., 98 App. Div. 101, affd. 181 N. Y. 531). It would follow that the creation of the court grants to it the inherent powers. If the court is, as in this instance, constitutionally created, these powers cannot be limited except by constitutional means. Legislative power to regulate procedure does not go to the extent of permitting interference with inherent powers (Riglander v. Star Co., supra, p. 108; Colon v. Lisk, 153 N. Y. 188, 195).
It would therefore appear that whether or not a restriction on the court’s power to dismiss for lack of prosecution is valid depends on whether that power is an inherent one, i.e., one such as the power to regulate its calendar, so necessary to its proper functioning as to be irrefutably implied. We believe that it Is, and that it has always been, so regarded. From the earliest times the English courts enjoyed this power (see 3 Blackstone’s Comm., p. 296, quoted in Herring v. Poritz, 6 Ill. App. 208, 211). All powers of the English courts were vested in the Few York Supreme Court (see Matter of Steinway, 159 N. Y. 250, 255) and since 1691 the power has been exercised. Courts of other jurisdictions have described it as an inherent power (State ex rel. Croker v. Chillingworth, 106 Fla. 323, 326) and have so held without employing the particular word. (See note to Grigsby v. Napa County, 36 Cal. 585, in 95 Am. Dec.
The condition resulting from the restrictive factors of CPLR 3216 is far more serious than the foregoing might portend. It is not merely a question of trespass by one branch of the government on another and the resultant pique or resentment. The courts in this department are plagued by a substantial number of cases which are instituted with no intention that they will ever be brought to trial (see Plachte v. Bancroft Inc., supra, p. 442). If the original purpose of bringing the action, settlement, is not realized, the case is allowed to remain without further advancement or with a minimum of activity designed to conceal the reluctance to put it to issue. It is these cases that clog the calendars and interfere with the prompt disposition of genuinely contested issues (Gino v. Syracuse Mem. Hosp., supra). But while the attorneys who institute these actions have little or no intention of ever disposing of them by trial, they are even more averse, when the nature of the case is revealed by their casual attention to it, to have it dismissed. As long as the case is viable, it is a potential source of some recovery, and this because of considerations other than its merit. It is these lawyers who, after several unsuccessful efforts, succeeded in procuring the enactment of the present rule (see Commercial Credit Corp. v. Lafayette Lincoln-Mercury, supra, p. 370).* As a result the court is deprived of a traditional procedure of material significance in the management of its calendars.
Indubitably the purpose to emasculate the power would be realized in the rule. The net result is that the courts, charged with a duty to administer the disposition of litigated cases with all the promptitude and dispatch that justice will permit, would be deprived of a means of meeting that obligation. For these reasons, namely, that its restrictive provisions impair and interfere with the court’s inherent power to control its own calendars, CPLR 3216, to the extent that it restricts dismissal for general delay, is unconstitutional.
The order entered September 11, 1967, should be reversed on the law and motion dismissing the action for lack of prosecution granted with costs.
The Attorney-General, pursuant to CPLR 1012 (subd. [b]), has been notified of these . proceedings and elected not to intervene.
*.
The rule there involved was the predecessor to the present rule. The court found that a legislative intent that the courts have “in effect lost their power to dismiss actions for delay except pursuant to the strict formula ” was so inadvisable and so contrary to traditional concepts that the then rule could not be so interpreted (see Thomas v. Melbert Foods, 19 N Y 2d 216), and as seen above reserved the question of the constitutionality of a rule which, as the present one, mandates that interpretation.