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SUPREME COURT DID NOT HAVE THE AUTHORITY TO DISMISS THIS FORECLOSURE ACTION PURSUANT TO CPLR 3216 OR CPLR 3215 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action should not have been dismissed pursuant to CPLR 3216 or 3215 because the statutory criteria were not met. Issue had not been joined so dismissal pursuant to CPLR 3216 was not permitted. And plaintiff had not abandoned the action pursuant to CPLR 3215:

We agree with the plaintiff’s contention that the Supreme Court was without authority to direct dismissal of this action pursuant to CPLR 3216. CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. Indeed, “[a] court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined.

We also agree with the plaintiff’s contention that the Supreme Court had no authority to direct dismissal of this action under CPLR 3215(c). “An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter” (…see CPLR 3215[c]). It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) … . Nor is a plaintiff required to specifically seek the entry of a judgment within a year … . As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) … .

Here, the plaintiff commenced the action on April 16, 2009. The Supreme Court granted the plaintiff’s motion for an order of reference only five months later, on September 14, 2009—well within one year of the commencement of the action. Although the plaintiff later withdrew its motion for a judgment of foreclosure and sale, in doing so, it stated that it “will not be discontinuing [this] action.” Thus, the plaintiff explicitly informed the court that it was not abandoning the action … . National City Mtge. Co. v Sclavos, 2019 NY Slip Op 03605, Second Dept 5-8-19

 

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