Opinion
2016-01583. Index No. 38367/05.
08-30-2017
NEW CENTURY MORTGAGE CORPORATION, appellant, v. Brian DAVIS, et al., defendants.
McGlinchey Stafford PLLC, New York, NY (Brian S. McGrath of counsel), for appellant.
McGlinchey Stafford PLLC, New York, NY (Brian S. McGrath of counsel), for appellant.
REINALDO E. RIVERA, J.P., MARK C. DILLON, FRANCESCA E. CONNOLLY, and ANGELA G. IANNACCI, JJ.
Appeal by the plaintiff from an order of the Supreme Court, Kings County (Robin S. Garson, J.), dated December 2, 2015. The order denied the plaintiff's motion to vacate an order of that court (Lawrence Knipel, J.) dated February 18, 2014, which conditionally dismissed the action pursuant to CPLR 3216, and to restore the action to the calendar, and directed the dismissal of the action.
ORDERED that the order dated December 2, 2015, is reversed, on the law, without costs or disbursements, and the plaintiff's motion to vacate the order dated February 18, 2014, and to restore the action to the calendar is granted.
The plaintiff commenced this action to foreclose a mortgage. After the defendants failed to answer, the plaintiff obtained an order of reference dated August 9, 2006. In an order dated January 7, 2013, the Supreme Court granted that branch of the plaintiff's motion which was to vacate the order of reference but denied that branch of the motion which was for a new order of reference. In an order dated February 18, 2014, the court conditionally dismissed the action for want of prosecution pursuant to CPLR 3216. The action was thereafter administratively dismissed on June 5, 2014. Subsequently, the plaintiff moved to vacate the conditional order of dismissal dated February 18, 2014, and to restore the action to the calendar. In an order dated December 2, 2015, the court denied the motion and "dismissed" the action. The plaintiff appeals, and we reverse.
CPLR 3216 permits dismissal of a party's pleading where certain conditions precedent have been met (see Wells Fargo Bank, N.A. v. Pinargote, 150 A.D.3d 1311, 1311, 52 N.Y.S.3d 907 ). Here, issue was never joined and, thus, at least one such condition precedent was lacking (see CPLR 3216[b][1] ; Wells Fargo Bank, N.A. v. Pinargote, 150 A.D.3d at 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, 912, 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 ). As a consequence, the Supreme Court was without authority to dismiss the action pursuant to CPLR 3216 (see Wells Fargo Bank, N.A. v. Pinargote, 150 A.D.3d at 1311, 52 N.Y.S.3d 907; Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d at 912, 47 N.Y.S.3d 413; U.S. Bank N.A. v. Bassett, 137 A.D.3d at 1110, 28 N.Y.S.3d 109 ).
Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the conditional order of dismissal dated February 18, 2014, and to restore the action to the calendar.