Section 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, 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;
    (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 for unreasonably
  neglecting to proceed.
    (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.