Opinion
2017–11385 Index No. 14285/09
04-17-2019
CITIMORTGAGE, INC., Appellant, v. Nora C. FERRARI, et al., Respondents, et al., Defendants.
Akerman, LLP, New York, N.Y. (Jordan M. Smith and Joseph DeFazio of counsel), for appellant. Tarbet & Lester, PLLC, East Hampton, N.Y. (Brian J. Lester of counsel), for respondents.
Akerman, LLP, New York, N.Y. (Jordan M. Smith and Joseph DeFazio of counsel), for appellant.
Tarbet & Lester, PLLC, East Hampton, N.Y. (Brian J. Lester of counsel), for respondents.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order dated August 28, 2017, is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion to vacate the order dated November 21, 2012, and to restore the action to the calendar is granted.
In April 2009, the plaintiff commenced this action to foreclose a mortgage given in 2003 by the defendants Nora C. Ferrari and Andre Santelli (hereinafter together the defendants) to secure a note in the principal sum of $ 1,300,000. On May 5, 2009, the defendants served an answer. Following settlement conferences held pursuant to CPLR 3408, the action was released from the foreclosure settlement conference part without any resolution. In an order dated November 21, 2012 (hereinafter the dismissal order), the Supreme Court directed dismissal of the action on the ground that the plaintiff failed to comply with an oral directive issued at a status conference on July 31, 2012, to resume prosecution of the action. In November 2016, the plaintiff moved to vacate the dismissal order and to restore the action to the calendar. In an order dated August 28, 2017, the Supreme Court, inter alia, denied the plaintiff's motion. The plaintiff appeals.
"A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met" ( Patel v. MBG Dev., Inc. , 41 A.D.3.d 682, 682, 839 N.Y.S.2d 122 ; see U.S. Bank, N.A. v. Mizrahi , 156 A.D.3d 661, 662, 64 N.Y.S.3d 565 ; Rhodehouse v. CVS Pharm., Inc. , 151 A.D.3d 771, 772, 56 N.Y.S.3d 228 ). 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 the 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 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Deutsche Bank Natl. Trust Co. v. Augustin , 155 A.D.3d 823, 824, 63 N.Y.S.3d 876 ). Here, the Supreme Court was without power to direct dismissal of the action on the ground of failure to prosecute because the plaintiff was not served with a written demand to serve and file a note of issue within 90 days (see Cadichon v. Facelle , 18 N.Y.3d 230, 235–236, 938 N.Y.S.2d 232, 961 N.E.2d 623 ; BankUnited v. Kheyfets , 150 A.D.3d 948, 949, 57 N.Y.S.3d 159 ; Krause v. Lobacz , 131 A.D.3d 1128, 1129, 16 N.Y.S.3d 601 ). Accordingly, the court should have granted the plaintiff's motion to vacate the dismissal order and to restore the action to the calendar (see Deutsche Bank Natl. Trust Co. v. Bastelli , 164 A.D.3d 748, 750, 83 N.Y.S.3d 155 ; New Century Mtge. Corp. v. Davis , 153 A.D.3d 927, 928, 60 N.Y.S.3d 435 ; Deutsche Bank Natl. Trust Co. v. Cotton , 147 A.D.3d 1020, 1021, 46 N.Y.S.3d 913 ).
In light of our determination, we need not reach the parties' remaining contentions.
MASTRO, J.P., AUSTIN, ROMAN and BRATHWAITE NELSON, JJ., concur.