You are here: / / A CONDITIONAL ORDER OF DISMISSAL PURSUANT TO CPLR 3216 WHICH DOES NOT STATE...
,

A CONDITIONAL ORDER OF DISMISSAL PURSUANT TO CPLR 3216 WHICH DOES NOT STATE THE FAILURE TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WOULD BE THE BASIS OF A MOTION TO DISMISS THE COMPLAINT IS INEFFECTIVE AND CAN BE VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal should have be vacated because it did not indicate that plaintiff’s failure to file a note of issue within 90 days would be the basis for a motion to dismiss:

“‘CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with'” … . Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) “‘unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement 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'” … .

Here, the conditional dismissal order did not contain the requisite language advising that the failure to file a note of issue would be the basis for a motion to dismiss … . Under these circumstances, the action should have been restored to the active calendar without considering whether the plaintiff had a reasonable excuse for its delay in moving to vacate the conditional dismissal order … . Wells Fargo Bank v Wasersztrom, 2024 NY Slip Op 06231, Second Dept 12-11-24

Practice Point: A conditional order of dismissal for want of prosecution pursuant to CPLR must include a statement that the failure to file a note of issue within 90 days would be the basis for a motion to dismiss the complaint. If that language is not in the conditional order, the order may be vacated.​

 

You might also like
Ornaments Hanging from Rear-View Mirror Justified Vehicle Stop
DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).
Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)
JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT’S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).
Law School Properly Rescinded Student’s Application for Admission Based Upon Omissions Concerning Criminal Record
LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).
FAMILY COURT SHOULD HAVE APPOINTED AN ATTORNEY FOR THE CHILDREN IN THIS CONTESTED CUSTODY MATTER (SECOND DEPT).
In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT BOUGHT THE FORECLOSED PROPERTY WITHOUT KNOWLEDGE THE JUDGMENT OF FORECLOSURE... PLAINTIFF PREVAILED IN THIS BREACH OF CONTRACT ACTION; HOWEVER, ABSENT A CONTRACT...