THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216(A); THEREFORE THE JUDGE COULD NOT, SUA SPONTE, DISMISS THE COMPLAINT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the conditional order of dismissal did not serve as a 90-day notice because it did not state that failure to comply with the notice will serve as a basis for dismissal for failure to prosecute. Therefore the judge did not have the authority, sua sponte, to dismiss the complaint:
“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” … . As relevant here, 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 [or her] for unreasonably neglecting to proceed'” … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , here, the conditional order of dismissal was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute … . “In the absence of proper notice, the court was without power to dismiss the action for the plaintiff’s failure to comply with the conditional order of dismissal” … . Under these circumstances, the action should have been restored to the active calendar. Nationstar Mtge., LLC v Adekoje, 2026 NY Slip Op 05315. Second Dept 9-16-26
Practice Point: Although a conditional order of dismissal can serve as a valid 90-day notice pursuant to CPLR 3216, to do so the conditional order of dismissal must meet all the content requirements mandated by CPLR 3216, including informing the plaintiff that the failure to comply will result in dismissal of the complaint.