Opinion
No. 2023-08447 Index No. 5112/11
12-11-2024
Wells Fargo Bank, appellant, v. Teresa Wasersztrom, etc., respondent, et al., defendants.
Hinshaw & Culbertson LLP, New York, NY (Jason J. Oliveri and Schuyler B. Kraus of counsel), for appellant. Mobilization for Justice, Inc., New York, NY (Joseph Rebella and McKenzie Lew of counsel), for respondent.
Hinshaw & Culbertson LLP, New York, NY (Jason J. Oliveri and Schuyler B. Kraus of counsel), for appellant.
Mobilization for Justice, Inc., New York, NY (Joseph Rebella and McKenzie Lew of counsel), for respondent.
MARK C. DILLON, J.P. BARRY E. WARHIT LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated December 24, 2019. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were, in effect, to vacate a conditional order of dismissal of the same court (Lawrence Knipel, J.) dated February 9, 2017, and to restore the action to the active calendar.
ORDERED that the order dated December 24, 2019, is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were, in effect, to vacate the conditional order of dismissal dated February 9, 2017, and to restore the action to the active calendar are granted.
In March 2011, the plaintiff commenced this action against Felipe Wasersztrom (hereinafter the decedent), among others, to foreclose a mortgage on certain residential property located in Brooklyn. The decedent interposed an answer to the complaint. In an order dated February 9, 2017 (hereinafter the conditional dismissal order), the Supreme Court directed dismissal of the complaint pursuant to CPLR 3216, "unless plaintiff files a note of issue or otherwise proceeds by motion for entry of judgment within 90 days from the date hereof." The plaintiff moved, inter alia, in effect, to vacate the conditional dismissal order and to restore the action to the active calendar. The decedent opposed the motion. In an order dated December 24, 2019, the court, among other things, denied those branches of the plaintiff's motion. During the pendency of the action, the decedent died, and Teresa Wasersztrom, as administrator of his estate, was substituted for the decedent. The plaintiff appeals.
The Supreme Court should have granted those branches of the plaintiff's motion which were, in effect, to vacate the conditional dismissal order and to restore the action to the active calendar. "A motion pursuant to CPLR 2221(a) is not subject to any specific time limitation" (Deutsche Bank Natl. Trust Co. v Campbell, 219 A.D.3d 701, 702; see U.S. Bank N.A. v Thompson, 189 A.D.3d 1643, 1644). "Where, as here, an order directing dismissal of a complaint is not appealable as of right because it did not decide a motion made on notice, it is procedurally proper for the aggrieved party to move pursuant to CPLR 2221(a) to vacate that order" (Deutsche Bank Natl. Trust Co. v Campbell, 219 A.D.3d at 702).
"'CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with'" (OneWest Bank, FSB v Segal, 221 A.D.3d 1020, 1022, quoting Deutsche Bank Natl. Trust Co. v Bastelli, 164 A.D.3d 748, 749; see CPLR 3216). Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) "'unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'" (OneWest Bank, FSB v Segal, 221 A.D.3d at 1022, quoting Cadichon v Facelle, 18 N.Y.3d 230, 235 [internal quotation marks omitted]; see CPLR 3216[b]).
Here, the conditional dismissal order did not contain the requisite language advising that the failure to file a note of issue would be the basis for a motion to dismiss (see OneWest Bank, FSB v Segal, 221 A.D.3d at 1022; Bank of Am., N.A. v Ali, 202 A.D.3d 726, 727; U.S. Bank N.A. v Spence, 175 A.D.3d 1346, 1348). Under these circumstances, the action should have been restored to the active calendar without considering whether the plaintiff had a reasonable excuse for its delay in moving to vacate the conditional dismissal order (see Cadichon v Facelle, 18 N.Y.3d 230; OneWest Bank, FSB v Segal, 221 A.D.3d at 1023).
Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were, in effect, to vacate the conditional dismissal order and to restore the action to the active calendar.
DILLON, J.P., WARHIT, WAN and GOLIA, JJ., concur.