Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822 [2d Dept 2018]

"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" (BankUnited v Kheyfets, 150 AD3d 948, 949; see CPLR 3216[b][3]). As relevant here, 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'" (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021). While a conditional order of dismissal may have "the same effect as a valid 90-day notice pursuant to CPLR 3216" (Byers v Winthrop Univ. Hosp., 100 AD3d 817, 818; see Griffith v Wray, 109 AD3d 512, 513; Stallone v Richard, 95 AD3d 875, 876), the conditional order here "was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute" (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3] [emphasis added]). Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was "no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal," nor was there "evidence that the order was ever properly served upon the plaintiff" (BankUnited v Kheyfets, 150 AD3d at 949). In the absence of proper notice, "the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal" (id.). Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review (see Cadichon v Facelle, 18 NY3d at 235-236; Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Armstrong v B.R. Fries & Assoc., Inc., 95 AD3d 697, 698). Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the order dated October 3, 2013, and to restore the action to the active calendar.

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