Opinion
2019–09917 Index No. 11968/08
01-18-2023
JP MORGAN CHASE BANK, NA, respondent, v. Alexander CANTWELL, et al., defendants, John Doe, etc., appellant.
Genevieve Lane Lopresti, Seaford, NY, for appellant. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
Genevieve Lane Lopresti, Seaford, NY, for appellant.
Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Richard Cella, sued herein as John Doe, appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered May 15, 2019. The order denied that defendant's motion, inter alia, pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute and pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action.
ORDERED that the order is affirmed, with costs.
On December 27, 2007, the defendant Alexander Cantwell executed a note in the sum of $337,500 in favor of the plaintiff, which was secured by a mortgage on certain real property located in Nassau County. In June 2008, the plaintiff commenced this action to foreclose the mortgage against, among others, Cantwell. On March 10, 2016, Cantwell transferred title to the subject property to the defendant Richard Cella, sued herein as John Doe. Cella was served with the summons and complaint on October 17, 2018. In February 2019, Cella moved, inter alia, pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute and pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action. In an order entered May 15, 2019, the Supreme Court denied the motion. Cella appeals.
Contrary to Cella's contention, the Supreme Court properly denied that branch of his motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute. "A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met" ( Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 522, 801 N.Y.S.2d 43 ; see Bank of Am., N.A. v. Ali, 202 A.D.3d 726, 727, 163 N.Y.S.3d 156 ). The conditions precedent include that the court or party seeking dismissal for failure to prosecute have served a written demand upon the plaintiff to resume prosecution of the action and to file a note of issue within 90 days after receipt of the demand (see CPLR 3216[b][3] ). Here, Cella does not dispute that the plaintiff was not sent a demand pursuant to CPLR 3216(b). Thus, the complaint could not be dismissed insofar as asserted against Cella pursuant to CPLR 3216 for failure to prosecute.
Furthermore, the Supreme Court properly denied that branch of Cella's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action. In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" ( Elow v. Svenningsen, 58 A.D.3d 674, 674, 873 N.Y.S.2d 319 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Here, Cella contends that the plaintiff failed to state a cause of action because Cantwell had filed for Chapter 7 bankruptcy and received a discharge. However, " ‘[a]lthough a bankruptcy discharge extinguishes one mode of enforcing a note—namely, an action against the debtor in personam, it leaves intact another—namely, an action against the debtor in rem’ " ( Citimortgage, Inc. v. Chouen, 154 A.D.3d 914, 916, 63 N.Y.S.3d 443, quoting Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 63, 13 N.Y.S.3d 163 ). Thus, Cantwell's discharge in bankruptcy did not impair the plaintiff's ability to bring an action to foreclose the mortgage (see Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d at 56, 13 N.Y.S.3d 163 ). Consequently, Cella was not entitled to dismissal of the complaint insofar as asserted against him for failure to state a cause of action due to Cantwell's discharge in bankruptcy.
Cella's remaining contentions are either not properly before this Court or without merit.
IANNACCI, J.P., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.