Chemical Bank of New York v. Polakov

Florida District Courts of Appeal
Chemical Bank of New York v. Polakov, 448 So. 2d 1148 (1984)
1984 Fla. App. LEXIS 12628
Dell, Hurley, Walden

Chemical Bank of New York v. Polakov

Opinion of the Court

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*1149ing 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.

Reference

Full Case Name
CHEMICAL BANK OF NEW YORK, a New York Banking corporation v. Sherman POLAKOV and Flora Polakov
Cited By
3 cases
Status
Published