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THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff-bank’s motion to vacate the conditional order of dismissal in this foreclosure action should have been granted. The conditional order of dismissal did not meet the requirements of CPLR 3216 and therefore did not dismiss the action as abandoned:

… [T]he conditional order of dismissal “was defective in that it failed to 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 action for failure to prosecute” … . Moreover, there was no indication that the plaintiff’s counsel was present at the status conference at which the Supreme Court issued the conditional order of dismissal, nor was there evidence that the conditional order of dismissal was ever properly served upon the plaintiff … . In addition, notwithstanding the statement in the conditional order of dismissal that “more than one year ha[d] elapsed since the joinder of issue,” there is no dispute that issue was not joined … .. Accordingly, the court should have granted the plaintiff’s motion to vacate the conditional order of dismissal, and to restore the action to the active calendar…. . Deutsche Bank Natl. Trust Co. v Beckford, 2022 NY Slip Op 01143, Second Dept 2-23-22

 

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