Opinion
2016-03688, Index No. 44548/07.
11-15-2017
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Morgan Stanley MSAC 2007–HE1, respondent, v. Daniel AUGUSTIN, appellant, et al., defendants.
Steve C. Okenwa, New York, NY, for appellant. Leopold & Associates, PLLC, Armonk, NY (Erin Wietecha of counsel), for respondent.
Steve C. Okenwa, New York, NY, for appellant.
Leopold & Associates, PLLC, Armonk, NY (Erin Wietecha of counsel), for respondent.
Appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J), dated March 3, 2016. The order, insofar as appealed from, in effect, granted that branch of the plaintiff's motion which was to vacate an order of that court dated October 24, 2013, conditionally dismissing the action pursuant to CPLR 3216.
ORDERED that the order dated March 3, 2016, is affirmed insofar as appealed from, with costs.
In this action to foreclose a mortgage, the Supreme Court issued an order dated October 24, 2013, conditionally dismissing the action unless the plaintiff "file[d] a note of issue or otherwise proceed[ed] by motion for entry of judgment within 90 days." Thereafter, the plaintiff moved, inter alia, to vacate the conditional order. By order dated March 3, 2016, the Supreme Court, among other things, in effect, granted that branch of the plaintiff's motion which was to vacate the conditional order. The defendant Daniel Augustin (hereinafter the defendant) appeals.
Courts are prohibited from dismissing an action pursuant to CPLR 3216 based on neglect to prosecute unless the statutory preconditions to dismissal are met (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Alli v. Baijnath, 101 A.D.3d 771, 771, 957 N.Y.S.2d 166 ; Neary v. Tower Ins., 94 A.D.3d 723, 724, 941 N.Y.S.2d 277 ; Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333 ). Specifically, issue must have been joined; at least one year must have elapsed since joinder of issue; the defendant or the court must have served on the plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff must have failed to serve and file a note of issue within the 90–day period (see CPLR 3216[b] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ).
Here, the initial statutory precondition was not met, as none of the defendants served an answer and, therefore, there was no joinder of issue (see CPLR 3216[b][1] ; see also 115–41 St. Albans Holding Corp. v. Estate of Harrison, 71 A.D.3d 653, 653, 894 N.Y.S.2d 896 ; Attarian v. Cutting Edge Marble & Granite, 285 A.D.2d 432, 433, 727 N.Y.S.2d 882 ). Accordingly, that branch of the plaintiff's motion which was to vacate the conditional order of dismissal dated October 24, 2013, was properly granted, as the court lacked authority to dismiss the action pursuant to CPLR 3216 (see Wells Fargo Bank, N.A. v. Pinargote, 150 A.D.3d 1311, 1311, 52 N.Y.S.3d 907 ; Deutsche Bank Natl. Trust Co. v. Hall, 149 A.D.3d 803, 804, 49 N.Y.S.3d 910 ; Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d 911, 911, 47 N.Y.S.3d 413 ; U.S. Bank N.A. v. Bassett, 137 A.D.3d 1109, 1110, 28 N.Y.S.3d 109 ).
In view of our determination, we need not address the parties' remaining contentions.
LEVENTHAL, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.