Opinion
2018-07655 Index No. 22696/09
09-16-2020
ONEWEST BANK, FSB, Appellant, v. Deryck A. SINGH, et al., Defendants; BSD 253, LLC, Proposed Intervenor-Respondent.
Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for appellant.
Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for appellant.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 15, 2018. The order, insofar as appealed from, denied, as academic, the plaintiff's motion to vacate a sua sponte order of the same court dated February 13, 2014, conditionally dismissing the action pursuant to CPLR 3216, and to restore the action to the calendar.
ORDERED that the order dated March 15, 2018, is reversed insofar as appealed from, on the law, without costs or disbursements, and the plaintiff's motion to vacate the order dated February 13, 2014, and to restore the action to the calendar is granted. CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. " ‘A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met’ " ( Bank of N.Y. v. Harper , 176 A.D.3d 907, 908, 110 N.Y.S.3d 736, quoting Delgado v. New York City Hous. Auth. , 21 A.D.3d 522, 522, 801 N.Y.S.2d 43 ; see National City Mtge. Co. v. Sclavos , 172 A.D.3d 884, 885, 99 N.Y.S.3d 430 ). Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined (see CPLR 3216[b][1] ; Bank of N.Y. v. Harper , 176 A.D.3d at 908, 110 N.Y.S.3d 736 ; National City Mtge. Co. v. Sclavos , 172 A.D.3d at 885, 99 N.Y.S.3d 430 ; U.S. Bank, N.A. v. Picone , 170 A.D.3d 1070, 1072, 96 N.Y.S.3d 671 ; Deutsche Bank Natl. Trust Co. v. Augustin , 155 A.D.3d 823, 824, 63 N.Y.S.3d 876 ). Since at least one precondition set forth in CPLR 3216 was not met, the Supreme Court was without power to issue an order conditionally dismissing the action pursuant to that statute (see Deutsche Bank Natl. Trust Co. v. Augustin , 155 A.D.3d at 824, 63 N.Y.S.3d 876 ; Wells Fargo Bank, N.A. v. Pinargote , 150 A.D.3d 1311, 52 N.Y.S.3d 907 ).
Therefore, the Supreme Court should have granted the plaintiff's motion to vacate the order dated February 13, 2014, conditionally dismissing the action, and to restore the action to the calendar.
RIVERA, J.P., CHAMBERS, COHEN and HINDS–RADIX, JJ., concur.