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AN ACTION CANNOT BE DISMISSED FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 WHEN ISSUE HAS NEVER BEEN JOINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure complaint should not have been dismissed pursuant to CPLR 3216 because issue had not been joined:

“A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met, including that issue has been joined in the action” … .. Here, dismissal of the action pursuant to CPLR 3216 was improper, since none of the defendants had interposed an answer to the complaint and, thus, issue was never joined … . Similarly, under the circumstances of this case, 22 NYCRR 202.27 did not provide a basis for dismissal of the action … . Wells Fargo Bank, N.A. v Frederic, 2022 NY Slip Op 04999, Second Dept 6-17-22

Practice Point: Where issue has not been joined the action cannot be dismissed for neglect to prosecute pursuant to CPLR 3216.

 

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