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ALTHOUGH THE FIRST FORECLOSURE ACTION COMMENCED IN 2009 WAS ADMINISTRATIVELY DISMISSED, IT WAS NEVER ABANDONED PURSANT TO CPLR 3216; THEREFORE THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED AND THE MOTION TO RESTORE THE 2009 ACTION TO THE CALENDAR IN 2018, AFTER THE SECOND (2015) FORECLOSURE ACTION WAS DISMISSED AS TIME-BARRED, SHOULD HAVE BEEN GRANTED; TWO-JUSTICE DISSENT (SECOND DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the first foreclosure action (commenced in 2009), which was “administratively dismissed,” was not abandoned because the criteria in CPLR 3216 were not met. Therefore, the administrative dismissal did not trigger the statute of limitations and the motion to restore that action to the calendar (after the second foreclosure action commenced 2015 was dismissed as time-barred) should have been granted:

… [T]he conditional order of dismissal, which, in effect, served as a 90-day notice pursuant to CPLR 3216, was defective in that it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute (see id. § 3216[b][3] …). * * *

We reject the defendant’s contention that the plaintiff effectively abandoned the instant action by commencing the 2015 action. * * *

… [T]he plaintiff was not required to move to restore the instant action to the calendar within any specified time frame … . “[A] motion pursuant to CPLR 2221(a) to vacate an order is not subject to any specific time limitation” … . The marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one … . Bank of Am., N.A. v Ali, 2022 NY Slip Op 00838, Second Dept 2-9-22

 

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